HOSSEN KAMRUL v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1882/2023

[2023] HKCFI 3229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1882 OF 2023

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J U D G M E N T

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A.  Application

1.  By an ex parte application dated 18 October 2023, the Applicant applies for a writ of habeas corpus, pursuant to Order 54 rule 1 of the Rules of the High Court (Cap 4A). The Applicant thereby seeks release from the custody of the Correctional Services Department.

B.  Background of Applicant

2.  The Applicant is a Bangladesh national born in 1986 who was arrested for being a suspected illegal immigrant on 22 January 2015. He raised a non-refoulement claim (“NRC”) on 25 January 2015. He was released on recognizance on 24 February 2015.

3.  The Applicant’s wife, son, parents and siblings are all in Bangladesh. He has no local connection in Hong Kong.

4.  On 22 June 2018, a removal order was issued against the Applicant (the “Removal Order”). The Applicant’s passport had expired on 2 June 2019.

5.  Upon his discharge from prison on 2 September 2023, the Applicant has since 2 September 2023 been detained under section 32(3A), section 29(1) and section 32(3) of the Immigration Ordinance (Cap. 115) (the “Ordinance”) pending his removal under the Removal Order.

6.  A deportation order was issued against the Applicant on 2 December 2023 (the “Deportation Order”).

7.  At the time of the hearing, the Applicant has been detained for 98 days.

C.  NRC related proceedings

8.  The Applicant’s NRC was based on alleged fear of being harmed or killed by members of the Awami League, as he is a member of the Bangladesh Nationalist Party, the opposing party.

9.  The Director of Immigration (the “Director”) rejected the Applicant’s NRC on 9 May 2018 by a notice of decision (the “Director’s Decision”). The Applicant’s appeal to the Torture Claims Appeal Board against the Director’s Decision was dismissed on 14 June 2019 (the “TCAB Decision”).

10.  The Applicant’s application to the Court of First Instance for leave to apply for judicial review against the TCAB Decision was dismissed by the Form CALL-1 in HCAL 1814/2019 dated 20 October 2023 (the “JR Decision”).

11.  According to the updated removal policy of the Immigration Department since 7 December 2022, once a NRC claimant's subsequent legal proceedings have reached the stage of having been rejected by the Court of First Instance, the existence of further proceedings will not normally be considered by the authority as an impediment to removal.

12.  There is thus no legal impediment to the Applicant’s removal due to any outstanding NRC related proceedings.

D.  Criminal Record/Record of Abscondence

13.  The Applicant’s criminal and sentencing records are as follows:

Date of Conviction	Offence	Period of Sentence
12 October 2022	Taking employment while being a person in respect of whom a removal order is in force	16 months

E.  Steps towards Removal

14.  There is no dispute that the only practical obstacle to removal was the need to obtain a travel document to replace the Applicant’s expired passport.

15.  The Immigration Department first wrote to the Consulate General of the People’s Republic of Bangladesh (the “BGD CG”) on 8 August 2023 seeking its assistance in verifying the Applicant’s identity and the issuance of a travel permit. The request was repeated on 20 September 2023 and 6 October 2023.

16.  The Applicant indicated his unwillingness to return to Bangladesh on 4 September 2023 and refused to co-operate with the necessary re-entry formalities on 11 October 2023, including an application to obtain replacement travel document and providing a photograph. Such refusal to co-operate was repeated on 17 November 2023.

17.  On 2 November 2023, the Immigration Department explored with the BGD CG on the alternative means for the issue of the replacement travel document due to the Applicant’s refusal to co-operate.

18.  The BGD CG replied that re-entry application form and interview are required for the issuance of a travel permit. When the formalities have been complied with, it would normally take 2 weeks’ time for the travel document to be issued.

19.  The Applicant’s identity was verified on 9 November 2023.

20.  The Deportation Order was issued against the Applicant on 4 December 2023.

21.  The Immigration Department explored with the BGD CG on the alternative means for the issue of the replacement travel document due to the Applicant’s refusal to co-operate again on 10 November 2023. The request was repeated on 6 December 2023.

F.  Applicable Principles

22.  In the Court of Appeal’s Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security and Another [2022] HKCA 781, the principles to be applied in an application for habeas corpus were set out in summary in §164.

23.  In considering the present application, I have adopted the said principles and have borne in mind that (1) the burden is on the Director to justify the continued lawfulness of the detention, and (2) the weight to be given to individual factors in the balancing exercise may, depending on the circumstances of the particular case, vary considerably as the period of detention lengthens.

G.  The Applicant’s Submissions

24.  The Applicant has set out his grounds for application in his affirmation dated 11 October 2023. In summary, they are as follows:

(1)  The detention was not for purposes of deportation as the respondents knew that the Applicant has an application for leave to commence judicial review.

(2)  The respondents knew there was an obstacle to removal and hence removal cannot be effected within a reasonable time.

(3)  The respondents did not act with reasonable diligence.

(4)  The detention should not be used to guard against re-offending.

(5)  The detention is affecting the Applicant significantly. The wearing of electronic tags was very uncomfortable. The CCTV Recording is a breach of privacy. The Applicant suffers from claustrophobia. The stress and pressure has caused the Applicant’s health to deteriorate.

(6)  Medical attention is slow.

25.  At the oral hearing, the Applicant made the following oral submissions in addition to the written submissions:

(1)  He wished to be released on bail so he could seek medical treatment for his illness.

(2)  He wished to stay in Hong Kong until he finished his medical treatment.

(3)  He could not go back to Bangladesh as there is danger.

26.  I shall bear these points in mind as appropriate in my analysis below.

H.  Lawful Authority for Detention?

27.  The Removal Order was issued on 22 June 2018 and the Deportation Order was issued on 4 December 2023. Both orders remain valid. The Applicant has been detained from 2 September 2023 until 21 November 2023 under section 32(3A) of the Ordinance which permits the detention of a person against whom a removal order is in force pending his deportation from Hong Kong.

28.  From 22 November 2023 to 3 December 2023, the Applicant was detained under section 29(1) of the Ordinance which permits detention of a person pending inquiry as to whether he ought to be deported.

29.  From 4 – 8 December 2023, the Applicant was detained under section 32(3) which permits detention of a person who is the subject of a deportation order.

30.  Thus, there was and remains clear prima facie lawful authority for the detention.

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

I.  Whether Detention has become unlawful

32.  The assessment of whether an originally lawful detention has ceased to be lawful due to its continuation for an unreasonable period will be made in line with the “Hardial Singh principles”:

(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”).

33.  The burden of demonstrating the detention (and the continuation of it) is lawful rests on the respondent to the application for habeas corpus.

HS1

34.  I am satisfied that the Director has detained the Applicant for the sole purpose of removal or deportation throughout the detention period. HS1 is satisfied.

HS2 & HS3

35.  The starting point is the length of the detention - (98 days) - against which all the other factors must be weighed and balanced.

36.  For the following reasons, I am satisfied that HS2 and HS3 are satisfied:

1)  There is no further legal impediment to the Applicant’s removal.

2)  There is no dispute that the Applicant has repeatedly refused to co-operate in obtaining a valid travel document to enter Bangladesh as well as refusing to attend interviews or co-operate with removal arrangements.

3)  There is nothing to indicate that but for the Applicant’s repeated refusal to co-operate in the removal arrangements, there was any further obstacle to his repatriation, hence release from detention.

4)  The BGD CG already indicated that if all formalities have been complied with, the travel document can be issued in about 2 weeks’ time. The period of detention was thus at least partly attributable to the Applicant’s self-inflicted hindrance and thus it lies ill in the mouth of the Applicant to complain about the length of the detention. His conscious and deliberate refusal to co-operate led to the impossibility of earlier deportation. The Applicant should not be allowed to rely on a self-imposed obstacle in arguing that the detention has become unreasonably long. This is a significant factor that has been taken into account.

5)  The Applicant has been convicted of an offence. The risk of re-offending is real, as the Applicant would need to take up employment to support himself.

6)  Given the Applicant’s clear attitude in the past that he is unwilling to be repatriated, the risk of absconding is real. With no local connection and the past history, I consider the risk of abscondence to be high. The risk of abscondence is of critical importance in assessing the lawfulness of the detention. If the Applicant absconds again, it would defeat the primary purpose for which the power to detain has been conferred and for which the detention order was made.

7)  Medical consultation was provided and the Applicant did receive medical treatment in the hospital when required.

8)  The Applicant’s request to remain in Hong Kong for 5 months until he completed his medical treatments cannot be acceded to. He has no right to remain in Hong Kong, nor to receive medical treatment in Hong Kong.

9)  Overall, weighing the period of detention - around 98 days - against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

37.  I am satisfied that HS4 is satisfied as shown in the efforts undertaken by the Immigration Department as set out in paragraphs 15 - 21 hereinabove. I am thus of the view that the Director had diligently pursued the Applicant’s deportation.

38.  Based on the above, I am of the view that the period of detention to date has remained lawful at all times and will remain lawful for the foreseeable future.

J.  Result

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