DITTA ALLAH v. DIRECTOR OF IMMIGRATION

CACV 215/2021

[2022] HKCA 779

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 215 OF 2021

(ON APPEAL FROM HCAL NO 437 OF 2021)

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J U D G M E N T

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Hon Coleman J (giving the Judgment of the Court):

A.  Introduction

1.  This was an appeal from the decision of Chow J (as he then was) given on 13 April 2021, [2021] HKCFI 935 (“Judgment”), refusing the Applicant’s application for a writ of habeas corpus, in relation to his being held in immigration detention pending his removal from Hong Kong.

2.  On the appeal, the Applicant acted in person. He had filed grounds and supplemental grounds of appeal, and clear skeleton submissions in accordance with the directions of the Court, to which he added orally.  The respondent to the appeal was the Director of Immigration (“Director”), represented by Mr Sunny Li and Mr Gilbert Mok from the Department of Justice.  They had also filed skeleton submissions in advance, on which they relied at the hearing.

3.  At the end of the hearing, we reserved our decision.  This is our Judgment.

4.  This Judgment is being handed down at the same time as the Reasons for Judgment in another appeal, heard by a differently constituted Court, in CACV 183/2021 [2022] HKCA 781.

B.  Background

5.  The Judgment below, at §§2-21, contains an account of the relevant background facts and procedural steps which we adopt with modifications and set out as follows.

6.  The Applicant is a Pakistani national born on 15 January 1992. His natural mother passed away in 1994.  His father, who was a Hong Kong permanent resident, married a widow in Pakistan in 1996.  At present, one of the Applicant’s natural sisters and three of his step-siblings are Hong Kong permanent residents.

7.  On 7 March 2008, the Applicant first entered Hong Kong for residence as a dependant of his father.  The Applicant’s limit of stay in Hong Kong was last extended until 17 February 2012.

8.  On 11 November 2011, the Applicant’s father passed away in Pakistan.

9.  On 17 February 2012, the Applicant made an application for extension of stay.

10.  On 21 December 2012, the Applicant was arrested in connection with a robbery case.

11.  On 11 March 2013, the Applicant’s application for extension of stay referred to in §9 above was refused by the Director.

12.  On 11 June 2013, the Applicant was convicted in DCCC 268/2013 of the alternative offence of handling stolen goods, and on 11 July 2013 he was sentenced to two years’ imprisonment.  In his materials filed for this appeal, the Applicant pointed to the fact that the Reasons for Sentence recorded that he had expressed remorse and admitted his wrongdoing, which arose from association with dubious friends, and that there was no use of weapon or violence.

13.  Between 17 April 2014 (the date of the Applicant’s release from prison) and 15 September 2014, the Applicant was detained under the Immigration Ordinance Cap 115 (“Ordinance”). During this period:

(1)  A deportation order (“Deportation Order”) was made against the Applicant on 17 June 2014 under s 20(1)(a) of the Ordinance.

(2)  An emergency passport was issued on 26 June 2014 by the local Consulate General of Pakistan for the Applicant’s return to his home country.

(3)  By letters dated 16 June, 7 and 23 July and 11 September 2014, the Applicant signified an intention to make a non-refoulement claim (“NRC”).

(4)  On 3 September 2014, the Applicant’s repatriation to Pakistan was not successful by reason of his resistance.

14.  On 15 September 2014, the Applicant was released on recognizance.  The Applicant says that fact was a recognition that the Director then realised he (the Applicant) was not a threat to society nor would likely abscond.

15.  One of the conditions of the recognizance was that during the period of his release, he should not take up any employment unlawfully.  The Recognizance Form No 8 dated 15 September 2014 also stated, inter alia, that “failure to observe [the] above may result in his detention and discontinuance of his release on recognizance”.

16.  On 1 June 2018, the Director decided to take no further action on the NRC in view of the fact that the Applicant could not be reached by the case officer handling his claim.

17.  On 30 April 2019, the Applicant was arrested while on recognizance.  In the short period on police bail until his guilty plea, he did not abscond.  On 25 May 2019, he pleaded guilty in STCC 2106/2019 to the offence of taking employment when a deportation order was in force against him, contrary to section 38AA of the Ordinance, and was sentenced to 15 months’ imprisonment.  The Applicant emphasises that he pleaded guilty to this offence, which again did not involve violence.

18.  On 23 March 2020, the Applicant was discharged from prison.

(1)  From 23 March 2020 to 25 March 2020, the Applicant was detained under section 32(3) of the Ordinance pending his removal from Hong Kong under the Deportation Order.

(2)  On 25 March 2020, the Applicant requested to pursue the NRC.  The Director therefore resumed processing of the NRC.

(3)  From 25 March 2020 to 28 May 2020, the Applicant was detained under s 37ZK of the Ordinance pending the final determination of the NRC.

(4)  On 22 April 2020, a completed Non-refoulement Claim Form in respect of the NRC was received by the Director.

(5)  On 6 May 2020, a screening interview of the Applicant in respect of NRC was conducted.

(6)  On 14 May 2020, the Director rejected the NRC.

(7)  On 28 May 2020, the Director treated the NRC as having been finally determined under 37V of the Ordinance in view of the fact that no notice of appeal/petition was received by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”).

19.  Though we shall return to the point later, the Applicant emphasises that the notices of detention dated 23 March 2020 and 25 March 2020 did not suggest that the Applicant was likely to pose a threat/security risk to the local community, and did not mention that he had convictions associated with crimes of a serious or violent nature.

20.  From 28 May 2020 to 16 July 2020, the Applicant was detained under section 32(3) of the Ordinance pending his removal from Hong Kong under the Deportation Order.  The notice of detention dated 29 May 2020 did not state the view that the Applicant constituted a threat/security risk to the community.

21.  On 9 June 2020, the Board informed the Director that it had received the Applicant’s late filing of a notice of appeal/petition (“Petition”) on 8 June 2020.  On 2 July 2020, the Director sent a letter to the Board informing the latter of the Applicant’s detention and requesting that priority be accorded to the Applicant’s case.  On 13 July 2020, the Board accepted the late filing of the Petition, and decided to give priority to the Applicant’s case.

22.  From 16 July 2020 to 14 September 2020, the Applicant was detained under section 37ZK of the Ordinance pending the final determination of the NRC.  The notice of detention dated 16 July 2020 did not state the view that the Applicant constituted a threat to the public order or security of Hong Kong, and did not conclude that he had convictions associated with crimes of a serious or violent nature.

23.  Between 29 June 2020 and 28 September 2020, the Applicant was apparently on a hunger strike.

24.  On 2 September 2020, the Board held an oral hearing of the Petition.  On 14 September 2020, the Board dismissed the Petition (“Board’s Decision”).

25.  From 14 September 2020 onwards, the Applicant has been detained under section 32(3) of the Ordinance pending his removal from Hong Kong under the Deportation Order.

26.  On 28 September 2020, the Applicant filed a Form 86 in HCAL 1948/2020 (“JR Application”) seeking leave to apply for judicial review of the Board’s Decision.  At the time of the hearing before the Judge below, no date had yet been fixed for the hearing of the JR Application.

27.  Up to the point of the Judge’s Judgment below, there had been 8 reviews of detention in respect of the Applicant’s then detention under section 32(3) by the Director and/or Secretary for Security (“Secretary”), the last being in early April 2021.

28.  It was decided on each occasion of review that the Applicant’s detention should continue on the grounds that (i) his removal was going to be possible within a reasonable time, (ii) he might constitute a threat/security risk to the community, (iii) he might abscond and/or re-offend, and (iv) there were no other circumstances in favour of his release.  The following factors were taken into account when reaching those decisions:

(1)  There was no sufficient reason to believe that the Applicant’s case could not be finalised in the near future or within a reasonable period of time.

(2)  If there was an outstanding claim / legal proceeding, there was no sufficient reason to believe that the claim / legal proceeding could not be completed within a reasonable period of time.

(3)  The Applicant had convictions associated with crime(s) of a serious or violent nature.

(4)  The Applicant had failed to comply with the terms/conditions of recognizance.

(5)  The Applicant was re-arrested while on recognizance.

29.  On 26 March 2021, the Applicant made the application in HCAL 437/2021 for a writ of habeas corpus. It was supported by an affirmation which had attached to it a handwritten document setting out his arguments in support of the application.  The Applicant also made oral and written submissions in support of his application at the hearing on 7 April 2021.  The application was dismissed by the Judgment below.

30.  The following occurred after the date of the Judgment below:

(1)  On 5 July 2021, by CALL-1 [2021] HKCFI 1918, DHCJ Bruno Chan refused to grant leave to apply for judicial review in the JR Application, finding that none of the grounds put forward by the Applicant were reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director or the Board in their decisions, and that there was no reasonable prospect of success in his intended application.

(2)  On 15 July 2021, the Applicant issued a summons essentially repeating the JR Application.  DHCJ Bruno Chan dealt with the summons on paper and directed on 5 October 2021 that it be struck out and dismissed, [2021] HKCFI 2922.

(3)  On 20 January 2022, the Applicant issued another summons, in essence seeking leave to appeal against the 5 July 2021 decision refusing him leave to apply for judicial review in the JR Application.  The summons was necessary because the application was some six months late after the expiry of the 14-day period on 19 July 2021. The summons was heard on 9 February 2022, when the Applicant appeared in person.  The summons was dismissed by DHCJ Bruno Chan’s Decision dated 23 February 2022, [2022] HKCFI 479.

(4)  On 12 April 2022, the Applicant issued a summons in CAMP 93/2022, applying for leave to appeal out of time against the decision of DHCJ Bruno Chan dated 5 July 2021. Pursuant to the directions of the Registrar of Civil Appeals, the Applicant was supposed to have lodged his written submissions in support of the summons on or before 26 April 2022, but failed to do so.  The application was dealt with on the papers, and on 8 June 2022 this Court differently constituted dismissed the application, [2022] HKCA 811.

31.  Further, by Application dated 26 April 2022 but issued on 6 May 2022, the Applicant has applied for a writ of habeas corpus pursuant to RHC Order 54 rule 1.  The Application was without supporting documents, and directions have since been given for the filing of further documents, and a response from the Director, so as to bring the matter to a hearing fixed for 18 July 2022.  That application is subject to a different judgment.

C.  Applicable Legal Principles

32.  In the Judgment [2022] HKCA 781 (handed down at the same date as this judgment), this Court has set out the applicable legal principles for a case such as the present, including at Section C §§44-60 and by way of a summary at Section L §164.  We would refer to those principles and only highlight some of them for present purposes.

33.  The purpose of an application of habeas corpus is to answer the central question as to whether there is lawful authority for a detention.

34.  The Deportation Order was made against the Applicant under section 20(1)(a) of the Ordinance.  Section 25 provides for the detailed steps for removing a person subject to a deportation order (or a removal order) from Hong Kong.

35.  Section 32(3) of the Ordinance confers authority for the detention of such a person pending removal.  Though not directly relevant for present purposes, it can be noted that a similar provision can be found in section 32(3A).

36.  Subsections 32(3B), (3C) and (3D) identify that:

(1)  “pending removal” includes awaiting a response from relevant authorities outside of Hong Kong for approval to remove the person to that place;

(2)  though that should not be interpreted as giving authority to detain a person for a purpose other than pending his removal from Hong Kong; and

(3)  that does not prevent a court, when applying subsection (4A), from determining that a person has been detained for an unreasonable period.

37.  Further, although the provision as amended was not in force at the time the Judge made the Decision below, a statutory amendment effective from 1 August 2021 expanded section 32(4A) of the Ordinance, to stipulate further circumstances under which the length of detention would be considered as reasonable and lawful.  The purpose of subsection 32(4A) is to conform to the Hardial Singh principles (see below), and to enhance transparency and unequivocal legal support to immigration officers in considering and determining the appropriate detention period.

38.  An initially lawful detention may be turned into an unlawful detention if it fails to meet the ‘Hardial Singh principles’, which are broken down into the following four points:

(1)  The Secretary/Director must intend to deport the person and can only use the power to detain for that purpose (“HS1”);

(2)  The deportee may only be detained for a period that is reasonable in all the circumstances (“HS2”);

(3)  If, before the expiry of the reasonable period, it becomes apparent that the Secretary/Director will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention (“HS3”);

(4)  The Secretary/Director should act with reasonable diligence and expedition to effect removal (“HS4”).

39.  What is a ‘reasonable time’ will therefore depend upon the circumstances of the particular case, taking into account all relevant factors.  The burden of demonstrating the detention (and the continuation of it) as lawful rests on the respondent to the application for habeas corpus.

40.  Any relevant factor may affect the length of time of detention that might be regarded as reasonable.  Whilst in a specific case one or more factors may have especial weight, no factor is necessarily determinative.

41.  It is settled that a review of what might be regarded as a reasonable length of period of the detention will include at least: (a) the length of the period of detention; (b) the nature of the obstacles which stand in the path of the Director preventing a deportation; (c) the diligence, speed and effectiveness of the steps taken by the Director to surmount such obstacles; (d) the conditions in which the detained person is being kept; (e) the effect of detention on him and his family; (f) the risk that if he is released from detention he will abscond; and (g) the danger that, if released, he will commit criminal offences.

42.  Either continuing detention is reasonable and so lawful, or it is not.  Though the Court’s review involves an exercise of judgment and balance, that is not a discretionary decision.  Hence, the Court is the judge of, and the primary decision maker as to, the reasonableness of the detainee's continued detention.

43.  It is helpful first to identify and have firmly in mind the period of detention to date, before balancing the various other factors and risks against that period.  This is because the weight to be given to the other factors and risks will vary as the period of detention increases in length.

44.  No guideline periods or a red line (in terms of months or years) applicable to all cases, as to the circumstances in which a lawful detention becomes unreasonable and hence unlawful, can be set.  Reference to the facts of other cases is also likely unhelpful.

45.  But, every deprivation of liberty pending deportation requires proper scrutiny of all the facts, in accordance with the Hardial Singh principles, which are the sole guidelines.

46.  The risks of absconding and reoffending are of critical and paramount importance in the assessment of the lawfulness of the detention.  However, a very careful assessment of the risk must be made in each case, as the magnitude and potential impact of that risk will vary according to the circumstances.  The risk of absconding is distinct from the risk of committing further offences, and not dependent on that further risk.  The risk of reoffending requires its own distinct assessment, by reference to both its likelihood and seriousness.  Neither risk can justify detention of any length, as that would permit indefinite detention.  The longer the detention, the greater the risk necessary to justify it.

47.  The Court will rigorously scrutinise the Secretary/Director’s assessment of risk on both grounds, and the weight to be given to that assessment will include consideration as to how convincing the reasoning is.

48.  When assessing (a) the probability that removal can be effected at all and (b) the proximity of the time to removal, a real sense of the timescale likely to be involved must be identified to be able to qualify it as reasonable.

49.  There must be a sufficient prospect of removal to warrant continued detention, having regard to and balanced against the weight of all other circumstances of the case.

50.  As the period of detention gets longer, the greater the degree of certainty and proximity of removal would be expected to be required in order to justify continued detention.

51.  On any appeal from a first instance decision of the Court, the appellate court will not interfere with the judge’s decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts.  The leeway given to the first instance judge is not as a result of the view that he has made a discretionary decision, but rather as a reflection that the balancing exercise can be difficult.

52.  The alternative to detention is release on recognizance under section 36(1) of the Ordinance.

53.  It can also be noted that it is an established policy that the Immigration Department will not seek to remove a person who has a pending non-refoulement claim including an appeal/petition to the Board. Further, the Director will suspend the removal if court proceedings have commenced, or if he knows that court proceedings are about to commence.

D.  The Judgment Below

54.  As is obviously correct, the Judge held (§§22-24) that the Applicant’s detention was prima facie lawful. Therefore, he went on to consider the Hardial Singh principles.

55.  As to HS1, the Judge held (at §26) there was no evidence to suggest that the Secretary/Director did not intend to deport the Applicant, or were using the power to detain for any purpose other than for the deportation of the Applicant.  (There is no ground of appeal on the HS1 point.)

56.  As to HS2, the Judge noted (at §27) that the Applicant had been detained for “a substantial period of time”, being nearly 7 months in the then current period, but even longer taking into account previous period of detention – together totalling about 12.5 months.  In considering whether the detention had gone on for an unreasonable period of time, the Judge took into account the following matters as relevant:

(1)  First (at §31), the obstacle preventing deportation was the JR Application.  Whilst the Applicant is entitled to exhaust all administrative, statutory and/or judicial remedies against the Director’s rejection of the NRC, the nature of the obstacle preventing deportation is a relevant factor when considering the question of how long it is reasonable for a person to be detained pending deportation.  The then present obstacle was not the result of conduct, still less default, of the Secretary or Director.

(2)  Second (at §§32-34), the Applicant could have been removed after the Board’s decision in September 2020, but for the JR Application.  The merits of that application were a relevant consideration, and a provisional view was that the JR Application did not appear to be a strong one, or have a good prospect of success.  Overall, not much weight should be attached to the period of the Applicant’s detention during the process of his legal challenge to the Board’s decision in assessing what is a reasonable period of detention in this case.

(3)  Third (at §§35-42), the risks of absconding and reoffending are of “paramount importance”.  In this case, the Secretary/Director was of the view that there were risks.  In favour of the Applicant, it might be argued that the materials did not point to a high or substantial threat/security risk to the community and/or risk of absconding, bearing in mind the fact that the Applicant’s first conviction for the offence of handling stolen goods took place 7 to 8 years before, and his second conviction for the offence of taking employment when a deportation order was in force did not involve any violence or dishonesty, and he has local connections.  However, weight should be given to the Security/Director’s consistent assessment that the Applicant, if released, may reoffend abscond and/or pose a threat or security risk to the community.

(4)  Fourth, the Secretary/Director had acted with diligence and speed to enforce the Deportation Order.  Though there was real doubt about the bona fides of the JR Application, there should have been an assumption, in the Applicant’s favour, that he was not pursuing the JR Application for a collateral purpose.  Overall, the period of detention was not unreasonable.

57.  As to HS3, the Judge held that there was no apparent reason why the JR Application could not be heard and determined within a reasonable time, particularly where a direction could be given that the application be accorded priority.

58.  As to HS4, the Judge held there was no evidence to suggest that the Secretary or Director had failed to act with reasonable diligence and expedition to effect the removal of the Applicant.

E.  Grounds of Appeal

59.  The Applicant’s grounds of appeal are broadly as follows:

(1)  First, the relevance of the likelihood of absconding, if proved, should not be overstated.  If carried to its logical conclusion, it could become a trump card that carries the day for the Secretary in every case where such a risk is made out regardless of all other considerations, not least the length of the period of detention, which would be an unacceptable outcome where human liberty is at stake. The previous offences were not serious, and the Court should consider them in their context and in the light of their non-violent nature when assessing future risk.

(2)  Secondly, the Judge erred in giving weight to the assessment of the Secretary and/or Director that the Applicant may reoffend, and and/or pose a threat or security risk to the community, not least in light of the four notices of detention between March and July 2020 which did not raise that issue.

(3)  Thirdly, the period of detention prolonged by reason of the JR Application should be given full weight, because seeking a JR against the decision of the Board is the Applicant’s legal right, and the fact that there was delay in the progress of the JR Application was not partly caused by him.

(4)  Fourthly, the Judge erred in taking into account the merits of the JR Application.

(5)  Fifthly, there is insufficient reason to believe that the JR Application could be finalised within a reasonable period of time, not least where there is an enormous number of outstanding applications which had not yet been determined, and some even where no dates had yet been fixed.

(6)  Sixthly, the Secretary and/or Director had not acted with reasonable diligence and expedition to effect removal, which the Judge failed to take into account.

60.  In his oral submissions, the Applicant also emphasised the points that:

(1)  in the notice of detention dated 23 March 2020, the decision to continue detention was not based on the reason that the Applicant “may constitute a threat/security risk to the community” (as that box was not ticked);

(2)  in the notice of detention dated 25 March 2020, the decision to continue detention

(a)  was not based on the reason that the Applicant “may constitute a threat to the public order or the security of Hong Kong” (because that box was not ticked), and

(b)  was also not based upon any risk of absconding (because the words “abscond and/or” were crossed out from the ticked box with the printed words “You may abscond and/or commit an offence which is punishable with a term of imprisonment”);

(3)  in the notice of detention dated 29 May 2020, the decision to continue detention

(a)  was not based on the reason that the Applicant “may constitute a threat/security risk to the community” (because that box was not ticked), and

(b)  it might be said that there is some ambiguity about the perceived risk of absconding where the ticked box was against the words “You may abscond and/or (re)offend”; and

(4)  in the notice of detention dated 16 July 2020, the decision to continue detention

(a)  was not based on the reason that the Applicant “may constitute a threat to the public order or the security of Hong Kong” (because that box was not ticked), and

(b)  it might be said there is some ambiguity about the perceived risk of absconding where the ticked box was against the words “You may abscond and/or commit an offence which is punishable with a term of imprisonment”.

61.  So, the Applicant submits that it was wrong for the Judge to refer to community risk.

62.  But the evidence demonstrates that, from the review of detention dated 22 September 2020, the box relating to constituting “a threat/security risk to the community” was ticked, and appears to have been ticked in all subsequent reviews and notices of detention.  In the internal notes to the last review of detention before the date of the hearing before the Judge below, the Recommendation was as follows:

Subject is a repeated offender and was previously convicted of “Handling stolen goods”, for which he received heavy sentence.  A deportation order was issued against subject and it is still in force.  While he was released on recognizance, he was further convicted of another offence which immediate custodial sentence was imposed by the Court.  In this regard, he is likely to pose a threat to the local community.  As regards his judicial review case, given that there is no sufficient reason to believe that his legal proceeding cannot be finalised within a reasonable period of time, there is reasonable prospect of effecting his deportation within reasonable time in the foreseeable future.  After careful consideration of all circumstances of the case, including the above-mentioned PAS’s conclusion on the review of the subject’s detention, this is not a case warranting release of subject on recognizance in lieu of his detention under section 32(3) of the Ordinance pending his deportation from Hong Kong.

F.  Merits of Appeal

63.  As to the first broad ground identified above, it is of course correct that the relevance of the likelihood of absconding and reoffending, if proved, should not be overstated.  We accept that the risk or likelihood of absconding needs to be weighed against all other considerations, and in particular the length of the period of detention.  However, we think the Judgment demonstrates that the Judge considered the previous offences and their nature and level of seriousness in context and in the light of their non-violent nature when assessing future risk.

64.  As to the second broad ground, the Judge did not simply leave matters to the Secretary or Director as regards the weight to be given to the risk of reoffending and/or of a threat or security risk to the community.  He fairly considered the arguments for and against the Applicant, when deciding to give weight to the earlier assessment.  He specifically noted that it might be argued that the materials did not point to a high or substantial threat/security risk to the community and/or risk of absconding, bearing in mind the fact that the Applicant’s first conviction for the offence of handling stolen goods took place 7 to 8 years before, and his second conviction for the offence of taking employment when a deportation order was in force did not involve any violence or dishonesty, and he has local connections.

65.  Further, as the four notices of detention between March and July 2020, on which the applicant placed reliance, were issued either (a) when the Applicant was detained under section 32(3) and there was no legal impediment to his removal or (b) at a time when the Applicant was detained under section 37ZK, the Judge was entitled to place more weight on other grounds or factors.

66.  In passing, we note that in later reviews, which were placed in the appeal materials de bene esse, though not actually admitted as evidence for the purpose of the appeal (see below), the format of review seems to have changed.  In the internal memo dated 7 December 2021, the material parts are as follows (bold and underlining in original):

Review

2.  In considering whether the subject should continue to be detained pending his removal, the following circumstances have been taken into consideration:

(i)  whether the person’s removal is going to be possible within a reasonable time

-  There is no sufficient reason to believe that the subject’s JR application cannot be finalized within a reasonable period of time as the Court has, in HCAL 2594/2018, stated that it appreciated the increasing number of judicial review cases in relation to non-refoulement claim in recent years and accordingly had assigned additional judges to adjudicate the matters to expedite the overall process.

(ii)  whether the person concerned constitutes a threat / security risk to the community

-  A deportation order has been made against Mr Ditta and his presence in Hong Kong is considered undesirable; and

-  Mr Ditta is a repeated offender and he has a number of convictions associated with crime of serious nature.

(iii)  whether there is any risk of that person’s absconding and/or (re)offending

-  There is considerable risk of Mr Ditta’s absconding because he has record of failing to comply with the terms / conditions of recognizance.

(iv)  whether that person’s identity is resolved or satisfied to be genuine

-  There is no doubt on Mr Ditta’s true identity.

(v)  whether that person has close connection or fixed abode in Hong Kong

-  An elder sister and three step-brothers who are HKPRs.

(vi)  whether there are other circumstances in favour of release

-  Nil.

Recommendation

3.  In HCAL 1540/2019, the Court held that merely because a non-refoulement claimant intends to apply, or has applied, for judicial review of the refusal of his / her non-refoulement claim is not a ground for him / her to be released from detention as a matter of law.  The Court further held in both HCAL 1540/2019 and HCAL 2233/2019 that the Secretary for Security and the Director were better placed than the Court to consider matters such as the risk of absconding or reoffending and the court was entitled to place weight on their assessment on those matters.

4.  The reasonableness of the period of detention is determined from each particular stage.  Having considered paragraph 2(i) above, it is not unreasonable to form a view that the subject’s JR application would be finalized within a reasonable period of time.  Balancing the circumstances of the case, it is considered that there are grounds for continued detention of the subject, especially considering his possible threat to the security of Hong Kong, the risk of his absconding / re-offending and the prospect of his removal within a reasonable time.  Subject to no outstanding impediment after his JR application being finalized, arrangement will be made to effect the subject’s deportation accordingly.

67.  As to the third broad ground, the period of detention was as a matter of fact prolonged by reason of the JR Application, as that was the legal impediment against the removal pending which the detention was in place.  The Judge noted that the Applicant is entitled to exhaust all administrative, statutory and/or judicial remedies against the Director’s rejection of the NRC.  But that process is a relevant factor when considering the question of how long it is reasonable for a person to be detained pending deportation.  The Judge pointed out that the present obstacle to removal was not the result of conduct or default of the Secretary or Director, but he did not proceed on any basis that any delay in the progress of the JR Application was caused by the Applicant.  Nor did he somehow penalise the Applicant for the existence of the JR Application; he merely took it into account as one of the factors in the overall assessment of reasonableness.  The weight to be given to that factor was for the Judge to assess, in light of all other factors.

68.  As to the fourth broad ground, the Judge did not err in taking into account the merits of the JR Application.  He was entitled to do so, and there were sufficient materials available for the Judge to be able to form a provisional view.  The Judge was also careful to make clear that the provisional view was limited to the purpose of determining whether the period of detention had become unreasonable (and was to have no influence on the judge eventually tasked to consider the merits of the JR Application).

69.  As to the fifth broad ground, it is not necessary for the Judge to have pinpointed the date by which removal could reasonably be expected to be affected.  However, we accept the general principle that there must be some real sense of a timescale in order to assess its quality of reasonableness in context.  Here, the Judge considered that the Applicant could be removed within a reasonable time, not least where he gave a direction that the JR Application be accorded priority.  Further, the Judge’s assessment, and the weight to be given to it, also was in the context of the then period of detention.

70.  As to the sixth broad ground, we do not think that the Secretary and/or Director had not acted with reasonable diligence and expedition to effect removal.  The evidence demonstrates the opposite. Further, in so far as the Applicant criticised the Director for not requesting priority to be accorded to his JR Application, that arose from the fact that it was an ex parte application (and this Court has sought in its Judgment [2022] HKCA 781 to identify how such a practical problem might in future be addressed).

71.  Lastly, we would point out that at the hearing we asked the Applicant to focus his submissions on the Judge’s Judgment, and the materials available to the Judge at the time of the hearing before him.  In the circumstances of this case, we took the view that the appeal was not the appropriate occasion for the Court to examine the lawfulness of the Applicant’s detention after the Judgment – not least where the additional challenge was made at a very late stage, only in the Applicant’s skeleton argument.  Instead, the appropriate course was to make a fresh habeas corpus application of the sort which the Applicant subsequently made.

G.  Result and Costs

72.  We do not think that the Applicant was able to show that what was an exercise of judgment by the Judge was inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts.  In other words, there is no basis to interfere with the Judge’s decision.

73.  The appeal is dismissed, with no order as to costs.