WIN AUNG v. DIRECTOR OF IMMIGRATION

HCAL 1579/2023

[2023] HKCFI 2695

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1579 OF 2023

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BETWEEN

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REASONS FOR DECISION

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1.  Introduction

1.1  The applicant is subject to a Removal Order made on 3 February 2010. He has been held in immigration detention since 26 July 2023 pursuant to section 32(3A) of the Immigration Ordinance (“Ordinance”). As at the date of the hearing before me on 16 October 2023, the applicant has been detained for a period of 83 days.

1.2  On 5 September 2023, the applicant applied for a writ of habeas corpus. Directions were thereafter given for the respondent to file an initial response. At the hearing, the applicant appeared in person, with the benefit of interpreters and the Director was represented by Mr Jinson Cheng, Government Counsel, who also signed the initial response.

1.3  At the conclusion of the hearing, I dismissed the application with no order as to costs.

1.4  These are the reasons for my dismissal of the application.

2.  Background

2.1  The applicant is a Myanmar national born on 16 March 1972. On 22 September 2006, the applicant arrived in Hong Kong from Bangkok and was permitted to remain as a visitor until 6 October 2006. He has since overstayed in Hong Kong.

2.2  On 19 January 2007, he was arrested by the police for overstaying and was referred to the Immigration Department for investigation on 20 January 2007, in the course of which he produced an asylum certificate issued by the Office of the United Nations High Commissioner for Refugees (“UNHCR”) on 12 January 2007 which stated that his claim for refugee status was being examined by the UNHCR.

2.3  On 1 March 2007, the applicant was released on recognizance.

2.4  On 3 February 2010, a Removal Order was made against him. His subsequent appeal to the Immigration Tribunal against the Removal Order was dismissed on 16 April 2010.

2.5  The applicant has no conviction or absconding records in Hong Kong. He also married a Hong Kong permanent resident, one Madam Sung Ie Hue, on 3 May 2009.

3.  The applicant’s non-refoulement claim (“NRC”) and related proceedings

3.1  On 11 March 2014, the applicant lodged a NRC on the grounds of, inter alia, torture risk and persecution risk.

3.2  In short, between 2014 and late 2018, the applicant’s NRC did not find favour with either the Director (who also assessed the application by reference to BOR 2 and BOR 3 risks) or later the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”).

3.3  As a result, the applicant applied for leave to apply for judicial review against TCAB’s decision (HCAL 2970/2018) on 24 December 2018, which application was refused by the court on 18 December 2020 (“CFI Judgment”)[1].

3.4  Thereafter, on 10 March 2021, the applicant applied for leave to appeal against the CFI Judgment out of time, which application was dismissed on 25 March 2022[2].

3.5  The applicant then applied to the Court of Appeal seeking extension of time from the Court of Appeal to appeal against the CFI Judgment (CAMP 229/2022). In dismissing the application, by its judgment dated 29 September 2022 (“CA Judgment”)[3]:

(1) the Court of Appeal noted that TCAB rejected the NRC because it had found that the applicant’s evidence was unreliable given the inconsistencies and internal illogicalities referred to in the decision and that the TCAB considered that even if the asserted facts were accepted, there was no real risk of the relevant harm;

(2) as the above findings were within province of TCAB, the Court of Appeal stated the court could not interfere with such assessments unless they were vitiated on public law grounds and noted that the applicant had wholly failed to set out any such grounds; and

(3) the Court of Appeal also noted the applicant had failed to show how the CFI Judgment was in anyway erroneous.

3.6  On the same day of the CA Judgment, the applicant applied for leave to appeal to the Court of Final Appeal, which application was dismissed by the Court of Appeal on 10 November 2022.

3.7  On 16 January 2023, the applicant filed an application to the Court of Final Appeal for leave to appeal (FAMV 8/2023). On 30 January 2023, the applicant was called upon to show cause by 27 February 2023 why his application should not be dismissed under Rule 7(1). Result of the Rule 7(1) procedure is still pending.

4.  Current detention and its review

4.1  On 26 July 2023, the Immigration Department decided to cease the applicant’s recognizance and detain him in Castle Peak Bay Immigration Centre (“CIC”) under section 32(3A) of the Ordinance. In the documentation, the detention decision was based on the ground that the applicant’s removal was going to be possible within a reasonable time. In particular, reference was made to the Updated Removal Policy which came into effect on 7 December 2022.

4.2  The applicant’s passport expired on 6 May 2009. Since his detention on 26 July 2023, the applicant has persistently refused to complete the travel document application form or to attend the requisite interviews with the Consulate General of Myanmar[4]. Attempts were made to the Consulate General to request the issuance of a replacement travel document to the applicant for his repatriation[5], and on 22 September 2023, the Consulate General confirmed that a duly completed application form, passport photograph and in-person interview at the Consulate General were necessary for the application of an Emergency Travel Document, which would be issued to the applicant two weeks after submission of the documents and completion of the interview.

4.3  On 4 October 2023, a letter was sent to the Consulate General for possible alternative means to issue to the applicant a replacement travel document or to confirm his reentry to Myanmar in writing despite the applicant’s uncooperative attitude.

4.4  On 6 October 2023, a review of the applicant’s detention was carried out. The Director considered that the applicant’s case was not one which warranted release on recognizance. In coming to that conclusion, the Director took into account, in summary, there is a clear intention to remove the applicant and the removal can be effected as soon as practicable when the applicant refrains from being uncooperative in complying with the re-entry formalities, there being no further legal impediments in the way of the applicant’s removal. By way of update, Mr Cheng at the hearing informed me that at the latest interview on 11 October 2023, the applicant still maintained his unwillingness to return to his home country.

5.  The applicable principles

5.1  The applicable principles are set out in Harjang Singh v Secretary for Security [2022] HKCA 781. I have in particular borne in mind the summary set out at §164 thereof.

5.2  In particular, I remind myself that the burden is on the respondents to an application for a writ of habeas corpus to justify the lawfulness of the applicant’s detention.

5.3  Further, as has been stated and repeated in many previous decisions, an application for a writ of habeas corpus is not an opportunity for the applicant to continue to assert the concerns underpinning his NRC and the court in his habeas corpus application will not look at the merits of any such claim. The central question is whether there is and continues to be lawful detention for a detention.

6.  The applicant’s submissions

6.1  The applicant’s supporting affirmation is not a very legible document. Helpfully, at the hearing, the applicant handed up an additional but more legible set of written submissions, which he confirmed encompassed the materials previously filed.

6.2  His submissions may be summarized as follows:

(1) He fears for his own safety if repatriated to his home country. In particular, he is unable to contact his family and members of his political party and he asserts that his village has already been burnt down and destroyed.

(2) He is unable to understand why his case (which I understand to be a reference to his NRC and related proceedings) has persistently failed, given that the political turmoil in his country is widely reported. He produced two news clippings which show that (a) Aung San Suu Kyi has gone incognito[6] and (b) no representative from Myanmar attended the Asean summit in Jakarta, Indonesia[7].

(3) He has had various operations and continues to suffer from various ailments. He has difficulties sleeping at night. His next medical follow-up appointments have been scheduled variously in 2025 (for his stomach and aftermaths from his previous surgery) and 2027 (for his teeth).

(4) He has been law-abiding and does not have any criminal records or any failures to comply with bail conditions. He was surprised that he was detained on and since 29 July 2023.

(5) Although it is not mentioned in his supporting affirmation and the submissions handed up at the hearing, he claims that he will live with his wife if released.

7.  Analysis

7.1  Throughout the applicant’s detention period, there has been prima facie lawful authority to detain the applicant pursuant to section 32(3A) of the Ordinance.

7.2  The question which falls for determination is therefore whether the detention has become unreasonable in all the circumstances, and hence unlawful. The starting point is the period of detention, namely 83 days, against which the various other factors must be weighed and balanced. Whilst I can appreciate the applicant’s surprise at being suddenly taken into detention, that does not give rise to any direct implication as to the lawfulness of the detention. Persons such as the applicant are released on recognizance, but are always subject to potential ceasing of recognizance, to be detained where appropriate under a power granted by the Ordinance.

7.3  I accept that, throughout the period of detention, the intention of the Director is to remove/deport the applicant and that has been the only purpose of the applicant’s detention. HS1 is satisfied.

7.4  I also accept that the Director has acted with diligence and expedition to effect the applicant’s approval. This has been amply demonstrated by the attempts made, despite the applicant’s uncooperative stance, to complete the reentry formalities.

7.5  By the time of the commencement of the detention, there was no legal impediment to removal. The real practical obstacle to removal was the applicant’s own uncooperative attitude in completing the reentry formalities. I accept Mr Cheng’s submission that had the applicant chosen to cooperate, his Emergency Travel Document would have been issued earlier, and so the applicant could have removed (and hence released from detention) earlier. It is also pertinent to note it is recorded in the documentation that the foregoing has been explained to the applicant at interviews conducted on 12 and 25 September 2023. I think Mr Cheng is right in his submission that the applicant has contributed to the length in detention, which factor I take into account and give weight.

7.6  In so far as the applicant seeks to justify his uncooperative attitude by reason of the fear of his own safety if repatriated, it is an attempt to reassert the concerns underpinning his NRC and, as stated above, the court in his habeas corpus application will not look at the merits of any such claim.

7.7  I acknowledge, and Mr Cheng fairly acknowledged, that the applicant does not have any criminal records and there is an apparent lack of history of absconding. At the hearing, upon my query, the applicant told me that he and his wife lived separately since early 2022 but stated he would live with his wife if released. However, the fact of the matter is that the applicant’s wife did not attend the hearing and the applicant has not sought to procure his wife to act his guarantor. I do not attach weight to his assertion, made for the first time at the hearing, that he has demonstrated any real local connection. In particular, his explanation for not mentioning his wife (because he was single when he made the application) is plainly incorrect. He and his wife married in 2009 and the present application was commenced in September 2023. Indeed, his marriage even predated the making of his NRC in March 2014.

7.8  I accept Mr Cheng’s submission that taking into account (1) the applicant’s strong unwillingness to return to Myanmar and (2) his uncooperative attitude, the risk of absconding, whilst not as high as in many other cases, cannot be considered low. Absconding would defeat the primary purpose of effecting removal, for which the power to detain has been conferred.

7.9  As to the applicant’s health issues, the documentation records that medical care is provided to the applicant as the CIC and the applicant fairly accepted that the medical officers are aware of all of his health concerns. Given that the medical follow-up appointments, according to the applicant, have been scheduled to take place in 2025 and 2027, it does not indicate that his medical conditions are unduly serious. In any event, I do not think there is any reason to believe that the applicant would not receive appropriate medical attention, either within CIC or at external medical service providers if necessary.

7.10  In the above circumstances, HS2 and HS3 are also satisfied.

8.  Conclusion

8.1  By reason of the above matters, I am satisfied that the applicant’s detention, and likely foreseeable future period of detention, has been and will remain lawful.

8.2  At the conclusion of the hearing, I therefore dismissed the present application with no order as to costs.