MD AL AMIN v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 179/2023

[2023] HKCFI 660

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 179 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant is a subject of a Removal Order issued under the Immigration Ordinance Cap 115 (“Ordinance”). He has been held in immigration detention since 13 June 2022 pending his removal from Hong Kong. To the date of this hearing, the period of detention has lasted 263 days, or around 8½ months.

2.  On 8 February 2023, the Applicant applied for writ of habeas corpus on the basis that his detention is arbitrary and has become unlawful, by virtue of the Hardial Singh principles.

3.  I gave directions for the Respondents to file an Initial Response, and so as to bring the matter to today’s hearing. At the hearing, the Applicant appeared in person with the benefit of a Bengali/English interpreter. The Respondents were represented by Mr Alvin Hor, Government Counsel. Mr Hor, albeit instructed to represent both Respondents, clarified that the Applicant’s detention was authorized by the Director under section 32(3A) of the Ordinance, and expressed the view that the Secretary for Security has “no role to play” in respect of the Applicant’s detention.

B.  Factual Background

B.1  Circumstances leading to the present detention

4.  The Applicant is a Bangladeshi national. He first entered Hong Kong in April 2013 and was allowed to stay as a visitor for two weeks. But he did not depart within the limit of stay and has been overstaying in Hong Kong ever since.

5.  In February 2014, he was arrested by the Police for overstaying and was handed over to the Immigration Department (“ImmD”) for handling. The Applicant lodged a non-refoulement claim (“NRC”) the next day after he was handed over to ImmD.

6.  Prior to the present detention, the Applicant was granted recognizance by the Director most of the time and was able to live in the community rather than being held in immigration custody. Whilst on recognizance, the Applicant was arrested for and subsequently convicted of taking employment or establishing or joining in a business, against the prohibition under section 38AA of the Ordinance. He was sentenced to 15 months’ imprisonment on 13 August 2021.

7.  On 13 June 2022, he was discharged from prison after having completed his sentence. On the same day, the present immigration detention began. He was detained pursuant to the authority under section 32(3A) of the Ordinance, which empowers the Director, Deputy Director or assistant Director of ImmD to detain a person against whom a Removal Order has been issued.

8.  The Removal Order against the Applicant was issued on 31 March 2014 and has remained extant.

B.2  The Applicant’s Non-refoulement claim

9.  As said, the Applicant lodged a NRC in 2014. His NRC was rejected by the Director in 2017 and then by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) in 2019.

10.  In April 2019, he applied for leave to challenge the Board decision by way of judicial review, in HCAL 1102/2019.

11.  In August 2022, that is after the present immigration detention had already begun, the Applicant wrote to the Court asking to withdraw his application. By decision dated 6 September 2022, DHCJ Lung noted that withdrawal request and, upon the strength of Re Manik Md Mahamudun Nabi [2022] HKCA 471, concluded HCAL 1102/2019 by a dismissal.

12.  In November 2022, the Applicant filed a summons asking for his leave application to be restored. In the supporting affirmation, the Applicant said that he had withdrawn the proceedings “inadvertently”. By a decision dated 3 January 2022, DHCJ Lung said that since the order for dismissing the Applicant’s leave application had already been sealed, the Court of First Instance had no jurisdiction to reinstate the leave application.

13.  As it now stands, there are no outstanding legal proceedings except this habeas corpus application.

B.3  Steps taken by the Director to effect removal

14.  As is common in habeas corpus applications raised by immigration detainees, the major obstacles impeding removal in this case have been the Applicant’s NRC or related legal proceedings and his expired travel document which needed replacement.

15.  I have set out how the NRC and judicial review proceedings unfolded. As for travel documents, Mr Hor set out in some detail in his written submissions the Director’s efforts in securing a replacement travel document for the Applicant.

16.  The efforts started before the commencement of the present detention. ImmD first contacted the Bangladesh Consulate General for such purpose on 26 November 2021, whilst the Applicant was serving his sentence for the conviction under section 38AA of the Ordinance. Then throughout 2022 to 2023, the Director has engaged in frequent written correspondence with the Consulate to seek to progress the Applicant’s re-entry application.

17.  On 6 October 2022, the Consulate interviewed the Applicant and obtained the Applicant’s re-entry application form and photo. The Applicant indicated his willingness to return, which was acknowledged by the Consulate.

18.  On 22 February 2023, the Consulate conducted a phone interview with the Applicant. During the phone interview, the Applicant expressed his willingness to return to Bangladesh. ImmD was advised by the Consulate that the Ministry in Bangladesh is processing the verification of the Applicant’s identity.

B.4  Review of Detention

19.  During the present detention, the Applicant has been equivocal in his willingness to return to Bangladesh. He initially consistently indicated willingness. However, he changed in mind in about November 2022. But it seems that he has also expressed some indecision, and that since around mid-January 2023, he had flip-flopped back again to being willing to return.

20.  The Applicant’s detention has been reviewed 4 times throughout the detention period. The last review was conducted on 10 January 2023. On every occasion, it was assessed that removal is possible within a reasonable period of time. It was initially noted that there was an ongoing judicial review which was considered to be capable of being finalized within a reasonable time. After the leave application was dismissed in September 2022, it was recognized that there was no further legal impediment. In all the 4 reviews, it was noted that the Applicant’s re-entry application into Bangladesh was in good progress. The Applicant’s criminal conviction under section 38AA and the 15 months’ sentence was relied upon for the assessment that the Applicant poses a risk to local community if released on recognizance.

C.  Applicable Principles

21.  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 this case.

22.  I will apply those principles as applicable to the particular circumstances of this case.

D.  Applicant’s Submissions

23.  In the supporting affirmation, the Applicant put forward the following grounds:

(1)  HS3 is not satisfied because the Applicant cannot be deported within a reasonable time. There have been no obstacles for removal and he had made clear his intention to be deported. Yet, the Director cannot say when the removal will be effected.

(2)  HS2 is not satisfied. He had been detained and had his liberty taken away from him for (at that point) over 7 months. The detention has gone on for a period which is unreasonable.

(3)  HS1 is not satisfied. It is obvious that the Director did not use the power for detention for the purpose of effecting deportation. Rather, the Director weaponized that power. His judicial review application had already been dismissed on 6 September 2022. The Director could have no excuse to argue that he did not weaponize the detention power.

(4)  HS4 is not satisfied. The Director has failed to act with due diligence in effecting the removal. The period of detention should have been more than enough for effecting removal.

(5)  NRC claimants, as non-Hong Kong residents, are entitled to enjoy the rights and freedom of Hong Kong residents in accordance with the law under Article 41 of the Basic Law (“BL41”). His rights under BL41 have been breached because he is now subjected to arbitrary detention.

(6)  His detention has been continued without justification. He is not detained for a crime committed by him or for reasons out of his own making.

(7)  He is not a security threat or risk to the community. The only crime he committed was not of a violent nature.

(8)  He has never failed to report immigration recognizance and has no absconding record.

(9)  He can provide a guarantor who is a Hong Kong permanent resident.

24.  In the oral hearing, the Applicant has further submitted (in my summary) that:

(1)  He is sorry for the offence committed by him, and apologises to the court.

(2)  He has served his sentence of 300 days for that offence, but he is nevertheless detained (up to today) for a further 263 days without further offence.

(3)  After he was arrested for the offence, he was given police bail, and court bail twice; but he always answered his bail as he had always signed recognizance with ImmD.

(4)  He has explained to his case officers, and now maintains, that he is willing and wishes to return to his home country.

(5)  This is so, notwithstanding that (whilst apparently verifying his identity with his mother in Bangladesh) the police in Bangladesh have informed his mother that there are two arrest warrants for the Applicant, so that he would be arrested if he returns.

(6)  The conditions in which he is kept interfere with his religious practices, including his ability to maintain devotion and proper religious diet, which has caused him psychological effect.

(7)  His privacy is violated through the use of CCTV in detention.

(8)  Though what is a reasonable period of detention will depend on the circumstances of a particular case, the Director cannot say when the Bangladesh Consulate will make available the new travel document, so cannot say when the Applicant might be removed.

(9)  The chances of absconding prior to removal our very low when he has indicated strong willingness to be repatriated.

(10)  He can provide a guarantor who is a Hong Kong permanent resident at an address at which he can be located by the Director if necessary, whilst on recognizance awaiting removal from Hong Kong.

25.  I will bear these points in mind in my overall assessment below, and make references to them as appropriate.

E.  Whether Detention has become unlawful

26.  There is no basis to suggest that the current detention is arbitrary (as claimed by the Applicant). The Removal Order remains extant and the detention was authorized by section 32(3A). There was and remains clear prima facie lawful authority for the detention of the Applicant.

27.  The question then arises whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

28.  The starting point is the Applicant has been detained for the period of 263 days, or about 8½ months. It is against this period that the other factors are to be weighed and balanced.

29.  I can address the Hardial Singh principles broadly in turn, as follows.

30.  I accept that the Director intends to deport the Applicant and has been using the power to detain only for that purpose. The Applicant said the Director had weaponized the detention power but he did not say for what ulterior purposes had such a power been used. As I understand it, the Applicant seems to suggest that the Director could have removed him already had he truly wished to, since there was no longer any legal impediment to his removal since 6 September 2022. Such an argument is based on mistaken facts. First, the Applicant himself tried to resurrect his JR. Secondly, the real current obstacle to removal is the Applicant’s expired passport, which has not yet been replaced by the Bangladesh Consulate General, despite the ImmD’s active efforts in pursuing the Applicant’s re-entry application. The time taken to process re-entry iss unfortunate but it does not mean the Director did not intend to remove the Applicant. HS1 is satisfied.

31.  I am also satisfied that the Director has acted with reasonable diligence in effecting removal, as evidenced by the active liaison with the Consulate in processing the Applicant’s re-entry into Bangladesh. The fact that the no replacement travel document has been issued so far is not a result of lack of diligence on the Director’s part. HS4 is satisfied.

32.  The judicial review leave application was dismissed on 6 September 2022, in less than 3 months after the Applicant had been detained. Whilst one might have hoped that the Applicant’s re-entry application could have been processed faster than it was, there has been progress throughout the period nonetheless. It is not a case that the Bangladesh Consulate General has not been responsive or that the Director was unable to establish contact with the Consulate. It was reasonable for the Director to hold the view that removal could be effected within a reasonable time throughout the period of detention.

33.  It might also be noted that the need to arrange for a travel document at all is due to the fact that the Applicant allowed his previous travel document to expire without ever renewing it, even though it expired as long ago as 2014. I of course acknowledge the practical unlikelihood of the Applicant having applied for a replacement passport whilst he was illegally in Hong Kong; but it the facts that the expired passport was a non-digital passport and that it had never been renewed have apparently added to the time necessary for obtaining the replacement travel document.

34.  As to timing, the Applicant says the Consulate has not been able to tell him when the replacement travel document might be provided. On the other hand, Mr Hor informs me that in a telephone call to the Consulate yesterday, the Director has been told that the replacement travel document process is actively underway both in the relevant ministry in Bangladesh as well as in the Consulate in Hong Kong. As to likely timing, the Consulate has apparently estimated that it should take around six months from the date of the first interview. As that interview took place on 6 October 2022, the estimated time for the travel document is early April 2023 (about one month from now).

35.  I also give some weight to Mr Hor’s submissions that given the Applicant’s previous criminal record, the risk of re-offending if released on recognizance could not be said to be low. Whilst the offence committed was not of a violent nature (as pointed out by the Applicant), this in and of itself does not mean the crime was not of a serious nature, as reflected in the 15 month’s imprisonment imposed by the criminal courts. Against that, I weigh the fact that the Applicant pleaded guilty and has again apologized.

36.  I also take note that the Applicant has never absconded or failed to report immigration recognizance and that he could provide a guarantor. On that basis, the risk of absconding does seem to me to be somewhat low. This is a factor which might favour release on recognizance, and is to be properly weighed in the balance.

37.  I have also taken into account the points made by the Applicant about the conditions of detention – whilst also noting that the Applicant has not previously raised any concerns with the Director about those conditions.

38.  In conclusion, assessing all the factors against the detention period of 8½ months, I am just satisfied that the detention has remained and will remain for a period which is lawful. HS2 and HS3 are satisfied.

39.  I reach that conclusion, on balance, on the basis that the Director has been informed that the travel document necessary for removal of the Applicant should be available within the next month or so. The balance may well shift if that turns out not to be the case.

F.  Result

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