ADJAGBA ROBERT v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1324/2023

[2023] HKCFI 2196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1324 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 made in 26 August 2015.  He has been held in immigration detention since 20 April 2022, pending his removal from Hong Kong.  To the date of hearing, the period of detention has lasted 491 days, or about 16 months.

2.  On 1 August 2023, he applied for writ of habeas corpus seeking his immediate release from detention.  On 2 August 2023, I gave leave for the respondents to file a written response and the necessary directions to bring the matter to today’s hearing.

3.  At the hearing, both respondents were represented by Mr Thomas Tong, Government Counsel from the Department of Justice (“DoJ”), though Mr Tong said that the 2^nd Respondent Secretary was not involved in making decisions concerning the present detention. The Applicant appeared in person.

4.  This is my Decision.

B.  Immigration Status

5.  The Applicant is a Beninese national, born in 1978.  He first arrived at Hong Kong on 18 June 2015 and was granted permission to stay as a visitor for 2 weeks, or until 2 July 2015.

6.  During the period of his otherwise lawful stay in Hong Kong, the Applicant was arrested and remanded in custody on 22 June 2015 for assaulting a police officer.  He was then convicted of 1 count of assault and 2 counts of assaulting a police officer, for which he was sentenced to a total of 31 days’ imprisonment.

7.  He was discharged from prison on the 30 July 2015, on which date he was transferred to the Immigration Department for handling. The Removal Order was then issued against him, on 26 August 2015, by the Assistant Director of Immigration, under section 19(1)(b)  of the Immigration Ordinance Cap 115 (“Ordinance”)

8.  But, before the Removal Order was made, the Applicant had already lodged a non-refoulement claim (“NRC”)  which, pursuant to the then applicable statute and removal policy, would have prevented the Director from removing him from Hong Kong pending the final resolution of his NRC.

9.  There is no need to delve into the details of his NRC proceedings for the purpose of this habeas corpus application.  Suffice it to note that, from August 2015 to June 2021, he had exhausted all the available administrative and judicial avenues (up to the Court of Final Appeal)  to establish his NRC, but to no avail.

10.  He attempted to make a further NRC – which is referred to as a “subsequent claim” in the Ordinance – in June 2021.  Such attempt also failed.  On 20 January 2022, the Court of First Instance (“CFI”)  imposed on him a restrictive proceedings order (“RPO”)  prohibiting him from commencing any fresh proceedings or continuing any existing legal proceedings relating to his NRC in the CFI, unless leave is first granted for him to do so.

11.  Whilst he continued repeatedly to request the Director either to re-open his previous NRC or to file a subsequent claim since January 2022, such requests were never acceded to by the Director.

12.  The upshot is that since June 2021, the Applicant has had no extant NRC nor any legal proceedings arising from such an NRC.

C.  Criminal Record & Absconding Record

13.  The conviction and sentencing record I have set out above represents the entirety of the Applicant’s criminal record in Hong Kong.

14.  The Applicant failed to report immigration recognizance on 2 occasions.  The first occasion occurred on 21 October 2019, when he resurfaced a little more than a month later on 28 October 2019 and explained that he did not know he had to report on the originally scheduled date.  The second occasion occurred on 23 August 2021, when he resurfaced also about a month later and explained that he forgot the reporting day.

D.  Steps towards Removal

15.  On 20 April 2022, the Director ceased the Applicant’s recognizance and has since detained him under section 32(3A)  of the Ordinance, which permits the detention of a person against whom a removal order is in force, pending his removal from Hong Kong.

16.  When the Applicant was taken into custody, the only obstacle standing in the path of his removal was his expired Beninese passport which needed replacement.

17.  The application process had not been smooth because the Applicant has repeatedly refused to complete the application procedures, including attending interview with the Honorary Consul of the Republic of Benin (“Beninese Consul”).  Such refusal was recorded on 5 May 2022, 21 July 2022, the 18 August 2022, 29 August 2022, 14 September 2022, 22 September 2022, and 15 November 2022. These were also coupled with his repeated indications of general unwillingness to return.

18.  Despite the Applicant’s refusal to cooperate, the Director continued to urge the Beninese Consul to issue a travel document to the Applicant without going through the usual application procedures.

19.  On 14 September 2022, the Beninese Consul confirmed that a travel document would be issued upon receipt of itinerary and regardless of the Applicant’s unwillingness to return.  On 21 November 2022, the Director emailed the Beninese Consul the itinerary for the Applicant’s repatriation flight then fixed for 15 December 2022.

20.  Eventually, the Director’s efforts bore fruit on 7 December 2022, on which date the relevant Beninese authority issued to the Applicant a re-entry permit expiring on 30 December 2022.

21.  Despite the issuance of the re-entry permit, the Applicant continued to indicate that he would not cooperate with any removal arrangement.

22.  Nonetheless, the Director booked a seat for the Applicant on a repatriation flight fixed for 20 December 2022.  But this repatriation operation had to be called off because the Applicant was persistent in not leaving Hong Kong in the morning when he was due to set off to the airport.

23.  On 16 March 2023, the Director requested the Beninese Consul the issue another travel document since the previous one had expired.  A second re-entry permit was issued on 17 April 2023.

24.  That was quickly followed by a second repatriation operation scheduled on 25 April 2023.  But this operation was also frustrated by the Applicant, who put up strong resistance when he was escorted to the vehicle setting off to the airport on the departure day.

25.  I am told that a third operation has already been put in place, fixed for 25 August 2023.  At the hearing, Mr Tong provided a copy of the electronic ticket for the repatriation flight from Hong Kong to Cotonou (via Addis Ababa)  on 25 August 2023.  The Beninese Consul had already been informed of the intended repatriation and had confirmed that the relevant authority (being the Beninese Embassy in Beijing)  would try to issue the necessary travel document before 25 August 2023.  It has now done so and, at the hearing, Mr Tong provided a copy of the permit issued to the Applicant dated 17 August 2023.  It is date of expiry is 31 August 2023.

26.  For what it is worth, I would mention that in the previous month the Applicant indicated to the Director that he would be willing to go to Nigeria and subsequently the United States.

E.  Applicable Principles

27.  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

28.  Amongst those exhibited to the Applicant’s supporting affirmation include 10 pages of hand written notes, which could be summarised as follows:

(1)  He set out how he came from Benin to Guangzhou and then to Hong Kong.  I suspect part of his description of events (concerning how he was asked by the Beninese officials to deliver some gowns and how his siblings were killed for his failure to do so)  more concern his NRC, and I see no relevance in them for the resolution of this habeas corpus application.

(2)  He also said that his criminal conviction was a matter which could have been dealt with at the police station rather than being processed through the courts.  If that was meant to be a challenge to the propriety of his criminal conviction, I shall not entertain it.

(3)  By reference to HS2, he said he has been detained for a period, i.e. 15 months, which has become unreasonably long.

(4)  He was detained solely because of his immigration status.  Permanent residents of Hong Kong who have committed far more serious crimes than him are allowed to roam freely in the community.

(5)  The current detention is in breach of his rights under article 41 of the Basic Law, which provides that non-Hong Kong residents (such as himself)  should also enjoy rights and freedoms of Hong Kong residents in accordance with the law.  Thus, he is also able to rely on article 28 to assert the right against arbitrary and unlawful detention.

(6)  The Director cannot rely on reoffending and absconding risk as reasons to continue the detention.  He has only been convicted on one occasion in 2015 for a matter which should have been dealt with in the police station rather than by the courts.  He has no absconding record.  Nor has he failed to report recognizance.

(7)  The detention has profound impact on his health, both physically and mentally.  He has had a major surgery in May 2022 and has been suffering from acute knee joint pain. He has also been experiencing psychological harm, including feeling low mood, low self-esteem, hopelessness, helplessness, fear, anxiety and worry, lack of appetite, unexplained aches and pains, lack of energy, difficulty in falling asleep, etc.  He also moves or speaks more slowly than usual.  He will be able to take better care of himself if he is to be released on recognizance.

(8)  He would agree to any terms and conditions imposed by the Director if he were to release him on recognizance.  He would also nominate a permanent Hong Kong resident has his guarantor.

29.  Relevant to his medical condition, I am informed by the Director that the Applicant was admitted to Tuen Mun hospital to undergo surgery on 31 May 2022.  He was discharged from hospital on 2 June 2022. Thereafter, the Applicant was taken to Tuen Mun hospital for medical follow-up on 9 June 2022.

30.  On 8 December 2022, the Applicant was admitted to the Accident & Emergency Department of Queen Mary Hospital and was discharged 4 days later.

31.  The other documents attached to the Applicant’s supporting affirmation are copies of the following: his expired Beninese passport, his Chinese visa, record of the request to transfer him to the Castle Peak Bay Immigration Centre upon his discharge from prison, the various “Notice of Review of Detention” served on him, his medical records, the Director’s internal minutes concerning his case, an extract from Halsbury’s Laws of Hong Kong, an extract from a book or a paper published by the law faculty of the Chinese University of Hong Kong on the topic of immigration detention in Hong Kong, the Court of Appeal’s judgment in Harjang Singh, and a previous habeas corpus judgment given by me in HCAL 838/2022 ([2022] HKCFI 2896).

32.  At the oral hearing, the Applicant:

(1)  placed most reliance upon the written materials already provided to the Court, and summarised above;

(2)  handed up certain documents evidencing his attendance at the North Lantau Hospital for a complaint of knee pain on 20 April 2022, when he was discharged on the same day with various prescription drugs to take for one week;

(3)  emphasised that he had been held in detention for 491 days, which is an unreasonably long time and has become unlawful;

(4)  stated that the lengthy period of detention has not been good for his health overall;

(5)  Requested the Court to understand him, to look into his matter, and to see how the Court could help them out; and

(6)  posed the question as to how he could go back to the “risk state” (meaning his home country of Benin), when that is the place where he has a problem and where various family members of his have been killed.

33.  Except for that last matter, I shall bear these points in mind as appropriate in my analysis below.  The question posed about the alleged risks of being returned to his home country is not relevant to the present application.  On this application for habeas corpus, the Court is not dealing with whether the Applicant should or should not be repatriated, or whether there is or is not a torture or other risk were the Applicant to be sent back to his home country.  That question falls to be dealt with in the context of the NRC – and the Applicant has failed to establish his NRC despite the lengthy process engaged in by him, some details of which I have set out above. 

34.  The question which arises for determination on the present application for habeas corpus is whether the Applicant can continue to be lawfully detained until he is removed from Hong Kong.  The question requires consideration as to whether the detention has become unlawful, itself depending on whether the detention has become unreasonable in all the particular circumstances of the case.

G.  Whether Detention has become Unlawful

35.  At all times, the Applicant was detained under section 32(3A), which permits the detention of a person against whom a removal order is in force pending his removal from Hong Kong.  The Removal Order remains extant.  There was and remains clear prima facie lawful authority for the detention.

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

37.  I can address the Hardial Singh principles broadly below.

38.  The starting point is the length of the detention – about 16 months – against which all the other factors must be weighed and balanced.  The period of detention is substantial.

39.  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, and has been working diligently and expeditiously towards that end.

40.  The Director has worked persistently towards the issuance of the necessary travel document and renewed it regularly to keep it current, despite the Applicant’s refusal to cooperate in completing the application procedures.  Two repatriation operations have already been attempted, but were both frustrated by the Applicant.  Had the Applicant chosen to cooperate, he would have been removed from Hong Kong, and thus released from detention, by 20 December 2022.  By then, the detention had lasted 8 months. Indeed, had he cooperated in applying for his travel document, arguably he would have been removed even earlier.

41.  I agree with the Director that the length of the current detention was partly – I would say significantly, more than half – contributed to by the Applicant who consciously and deliberately frustrated the removal arrangements by refusing to cooperate.  The reality of the matter is that the Applicant has been continuously detained up to today by his very own choice.  He should not be allowed to rely on a self-imposed obstacle in arguing that the detention has become unreasonably long when he was the very person who had unnecessarily and unreasonably lengthened it.  This is a factor on which I am entitled to place, and do place, significant weight, pursuant to section 32(4A)  of the Ordinance.

42.  The criminal record and absconding record of this Applicant is obviously not amongst the most serious that this Court has seen in the recent habeas corpus application of this sort. However, the facts that (a) he repeatedly refused to cooperate in applying for a travel document, (b) he persistently indicated willingness to return, and (c) he has frustrated two repatriation operations point strongly to that the fact that he may fail to show up at the airport two days from now (on 25 August 2023, the scheduled date of the third operation).  I agree with Mr Tong that is there is a real and not insubstantial risk of absconding.  Were the Applicant to be released and then abscond, that would frustrate the very purpose of removal.

43.  As to the Applicant’s medical conditions, Mr Tong submitted that the Applicant has been given proper medical attention and treatment throughout the present detention.  Detainees who feel unwell during detention will be provided with appropriate medical services by in-house medical officers, and as necessary arrangements will be made for the receipt of medical treatment at public hospitals.  From the medical records of the Applicant, there is no evidence to suggest that what the Director says about medical treatment was not or has not been the case.  Indeed, the medical records handed up by the Applicant today are good evidence of the medical care which can be provided.

44.  Overall, weighing the period of detention – the substantial period of around 16 months – against all the other factors including that repatriation is imminent and the Applicant will be released from detention two days from now (albeit on repatriation to Benin), I am satisfied that HS2 and HS3 are met.

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

H.  Result

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