NOPITASARI INTAN DWI v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1254/2023

[2023] HKCFI 2089

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1254 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 against her on 10 June 2015 and a Deportation Order dated 9 November 2021. She has been held in immigration detention since 11 February 2021 pending her removal from Hong Kong.  To the date of this hearing, the detention has lasted for the extremely substantial period of 906 days, or about 2½ years.

2.  On 21 July 2023, she applied for writ of habeas corpus on grounds set out in her supporting affirmation.  On 24 July 2023, I gave leave for the Respondents to file and serve their response and the necessary directions to bring the matter to today’s hearing.

3.  At the hearing, the Respondents were represented by Ms Angel Zhi, Senior Government Counsel (Ag.) of the Department of Justice (“DOJ”).  The Applicant appeared in person with the benefit of an Indonesian/English interpreter.

4.  This is my Decision.

B.  Background Facts Leading to the Present Detention

5.  The Applicant is an Indonesian national born in 1987.

6.  She last entered Hong Kong in September 2014 as a foreign domestic helper.  When her employment contract was prematurely terminated in January 2015, she did not depart within 2 weeks as required, and has thus became an over-stayer.

7.  In April 2015, she was arrested by the police and subsequently convicted of soliciting for an immoral purpose and 2 counts of breach of conditions of stay, for which she was sentenced to a total of two months’ imprisonment.  A Removal Order was then issued against her on 10 June 2015.

8.  But the Removal Order was not executed because she had raised a non-refoulement claim (“NRC”) in the same month when she was arrested.  Under the then applicable legal and policy framework, a non-refoulement claimant could not be removed when he or she still has an ongoing NRC or related judicial proceedings.  This largely explains why the Applicant has been staying in Hong Kong until now.

9.  While she stayed in Hong Kong, she further committed the offence of trafficking in a dangerous drug for which she was sentenced to 4 years and 6 months’ imprisonment on the 31 October 2018. This conviction record subsequently formed the basis for the issuance of the Deportation Order on 9 November 2021.

10.  When she was discharged from prison on 11 February 2021, she was transferred to the Immigration Department which then held her in immigration detention until now.

C.  The Daughter

11.  When the Applicant was remanded in jail custody for the offence of trafficking in a dangerous drug, she gave birth to a daughter in January 2018. The daughter, as I am informed, is also an Indonesian national and the subject of a Removal Order issued on 22 April 2021.

12.  The daughter was fathered by the Applicant’s boyfriend.  The boyfriend was also a non-refoulement claimant but he was already removed from Hong Kong back to Bangladesh on 26 July 2023. The mother has the legal custody of the daughter.

13.  I am informed by the Director that the daughter was in the care of the mother in the prison until the daughter attained three years old.  Since January 2021, the daughter has been under the care of the International Social Services (“ISS”).

14.  As the chronology indicates, the daughter was already taken away from the mother while she was still in prison and before the present immigration detention began.

15.  I am told that that arrangement was made in accordance with Rule 21 of the Prison Rules Cap 234A.  Rule 21 allows the child of a female prisoner to be received into the prison until the Medical Officer certifies that the child is in fit condition to be removed from the mother.  The Commissioner of Correctional Services may then commit such child to the care of those who in the Commissioner’s opinion may be a fit and proper person to take care of the child.

16.  Since 11 February 2021, the mother has been detained at the Castle Peak Bay Immigration Centre (“CIC”), which is run by the Immigration Department and not subject to the Prison Rules.  I am not informed about the Director’s policy regarding any mother-and-child arrangement.  But as a matter of fact, since 11 February 2021, the mother and daughter have remained separated, with one detained in CIC and the other placed in the care of ISS.

17.  As will be seen in more detail below, the proposal of the Director is to remove the Applicant mother together with the daughter to Indonesia on a flight fixed for 11 August 2023, now that all removal obstacles pertaining to both the Applicant and her daughter have finally been resolved.  The removal obstacles, as usual, were the NRC or related proceedings and the need to obtain valid travel documents for them.

D.  NRC

18.  The Applicant’s NRC raised in April 2015, was first rejected by the Director in May 2017, and then by the Torture Claims Appeal Board/non-refoulement Claims Petition Office (“Board”) in March 2018.

19.  While in prison, the Applicant made a subsequent claim for herself and lodged an NRC on behalf of her daughter in April and October 2020 respectively.  Their claims were handled as a joint NRC application.

20.  The basis of the joint NRC is that the Applicant and/or her daughter will be harmed by the Applicant’s creditor and be subject to discrimination and danger since the Applicant gave birth to the daughter out of wedlock.  The joint NRC was rejected by the Director in January 2021.

21.  The Applicant appealed against the Director’s refusal shortly before she was taken into immigration detention.  Whilst in immigration custody, the appeal was heard by the Board in April 2021 and then dismissed in June 2021.

22.  In July 2021, the Applicant sought leave to challenge the Board’s decision by way of judicial review in HCAL 954/2021. The Court of First Instance (“CFI”) dismissed the application in September 2021.

23.  In May 2022, more than 7 months later, the Applicant sought leave from the CFI to appeal against its refusal, out of time.  In September 2022, the CFI refused to extend time.

24.  In November 2022, the Applicant renewed the extension of time application before the Court of Appeal (“CA”) in CAMP 495/2022. This decision remains pending.

25.  But with effect from 7 December 2022, the Government has changed its removal policy such there once a claimant’s NRC has reached the stage of its subsequent judicial review being refused by the CFI, any further proceedings will no longer be seen as an impediment to removal as long as the refusal by the CFI subsists.  As a result, the Director takes the view that there has been no legal impediment preventing the removal of either the Applicant or the daughter since 7 December 2022.

E.  Replacement Travel Document

26.  The Applicant originally held an Indonesian passport which had already expired in August 2018.

27.  As early as in April 2020, almost 2 years before the Applicant was taken into immigration custody, the Director already started liaising with the Consulate General of Indonesia for the purpose of obtaining a replacement travel document for the Applicant.  A new passport was issued to the Applicant on 28 February 2021, with a validity period of one year.  The Director was unable to remove the Applicant within the validity period, which necessitated the issuance of a second replacement passport.

28.  Since November 2021, the Director has been liaising with the Indonesian Consulate for obtaining a passport not only for the Applicant but also her daughter.

29.  But the application process was far from smooth because the Applicant consistently expressed unwillingness to return to Indonesia and refused to complete the application procedures for herself or her daughter.  Such unwillingness or refusal to complete the application procedures were recorded on the 25 August 2022 and 11 October 2022.

30.  In any event, the Director was able to procure some cooperation of the Applicant at some point and she attended an interview with the Consulate on the 27 October 2022.  On 28 October 2022, another travel document expiring on 28 October 2023 was issued to the Applicant.

31.  But it took much longer time for the daughter’s passport to be issued.  The Applicant continued to resist completing the application steps for her daughter.  Resistance or refusal was recorded on 9 January 2023 and 3 March 2023.

32.  At the end, the Director turned to the social worker of ISS for assistance in completing the daughter’s application for a passport.  On 28 March 2023, the Director was able to secure photos of the daughter and a re-entry application form completed by the social worker.

33.  However, the Consulate still requested for a declaration letter or consent letter from the Applicant before a travel document could be issued to her daughter.

34.  On 13 April 2023, the Applicant refused to attend an interview with the Consulate for the purpose of facilitating the daughter’s return to Indonesia.  But such interview eventually took place the next day and a declaration letter was also secured during the interview.

35.  On 19 May 2023, the social worker from ISS accompanied the Applicant’s daughter to attend the interview at the Consulate for the application seeking re-entry.

36.  On 21 May 2023, an emergency travel document was issued by the Consulate to the daughter, with an expiry date on 21 May 2024.

37.  Whilst not provided with the relevant documents, I am told that the Director liaised with the Social Welfare Department and ISS regarding the repatriation arrangement for the Applicant and her daughter in June 2023.  I am also told that the target then was to effect removal in early August.

38.  Repatriation arrangements were settled in July 2023. On 31 July 2023, the Director purchased the air tickets for both the Applicant and her daughter for a repatriation flight scheduled for 11 August 2023, i.e. tomorrow.

39.  The Social Welfare Department and the ISS were informed of the proposed removal operation and they both said they will make arrangement to accompany the daughter to the airport for repatriation on 11 August 2023.

F.  Power of Detention & Reviews of Detention

40.  When the Applicant was taken into custody on 11 February 2021, the authority for detention came from section 37ZK of the Immigration Ordinance, Cap 115 (“Ordinance”) which authorizes detention of a person pending the final determination of her NRC.

41.  After the Applicant’s NRC had become “finally determined” when the appeal to the Board was rejected on 9 June 2021, the Director then started to detain her under section 32(3A), pending her removal pursuant to the Removal Order.

42.  From 19 October 2021 to 8 November 2021, she was detained under section 29, which permits detention of a person for the purpose of making inquiry on whether a deportation order ought to be made.

43.  Since the making of the Deportation Order on 9 November 2021, the Applicant has been detained under section 32(3), which permits detention of a person pending deportation.

44.  The Applicant’s detention was reviewed on 6 occasions. The first one was concluded on 17 March 2021, when the Applicant was detained under section 37ZK.  The Director refused to grant recognizance on the grounds that (a) the Applicant’s torture claim may be decided within a reasonable time in the foreseeable future; (b) she may constitute a threat to the public order or the security of Hong Kong; (c) she may commit an offence which is punishable with the term of imprisonment and (d) there are no justifying circumstances in favour of her release.

45.  Her detention was reviewed the second time, on 14 April 2021, while she was still detained under 37ZK.  Release from detention was refused on the same grounds.

46.  After her NRC appeal to the Board was rejected on 9 June 2021, her detention, then under section 32(3A), was reviewed by the Director on 5 August 2021.  The Director decided to continue the detention on the grounds that (a) her removal is going to be possible within a reasonable time; (b) she poses or is likely to pose, a threat to a security risk to the community, (c) she may abscond and/or reoffend; (d) she does not have close connection of fixed abode in Hong Kong, and (e) there are no other circumstances in favour of her release. In the Director’s internal minutes, it was noted that the Applicant’s judicial review leave application in its HCAL 954/2021 was currently under way with no fixed to hearing date.  It was also noted that the daughter had been admitted to a temporary shelter of the ISS and the Social Welfare Department was authorised to act as the daughter’s guarantor for the purpose of recognizance.

47.  The third round of review of detention was concluded on 23 March 2022, more than 6 months later.  This is quite a large gap between reviews.  Recognizance was refused on the same grounds.  The internal minutes noted that there was no outstanding legal impediment (with the Applicant’ leave application dismissed on 16 September 2021) and there was a reasonable prospect to secure a replacement travel document for the Applicant within a reasonable time.

48.  The fourth round of review was concluded on 30 May 2022, and recognizance was similarly rejected.  By then, the Applicant had already filed the time extension summons to seek leave to appeal against the CFI’s refusal.  The internal minutes note that there are was no sufficient reason to believe that legal proceedings would not be finalised within a reasonable time.

49.  The fifth round of review was concluded almost a year later, on 30 March 2023 – another long gap – and recognizance was rejected.  But this time the ground on the lack of close connection or fixed abode in Hong Kong was no longer relied upon.  It was noted that the Applicant’s NRC related proceedings were no longer an impediment under the new removal policy and that she had directly or indirectly prevented or delayed her removal by failing to cooperate in the removal arrangements.

50.  The last round of review was concluded by the Director on 3 August 2023, although it appears that the Applicant may not yet have been formally informed of the result by way of a “Notice of Review of Detention”. The most senior officer – being the PIO(RAL) – in the relevant chain of command recommended continued detention with the following observation:

I am mindful subject has been detained for around 2 years and 5 months.  There is no legal impediment and the re-entry has been secured for herself.  I note that subject has a daughter in HK who is under the care of SWD with no right to stay in HK.  I also note that subject has been uncooperative to secure the ID for her daughter.  However, the ID was eventually issued after rounds of communication with local CG.  Subject has a very serious conviction record of trafficking DD with 4 years and 6 months of imprisonment.  She committed the offence when she was released on recognizance.  The risk of absconding and re-offending are both not low.  The gravity of the offence committed was serious, posing threat to the society. Moreover, I also took into account of her daughter.  She is currently under the care of SWD and will be removed together with the subject on 11 August 2023. Having balancing all the relevant factors and with clear prospect of removal, I consider this is not a case warranting release on recognizance.

G.  Applicable Principles

51.  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.

H.  The Applicant’s Submissions

52.  The Applicant exhibited 9 pages of hand written notes to her supporting affirmation, and a copy of her daughter’s birth certificate.

53.  Her submissions could be summarised in two broad categories.  The first category concerns her daughter, and the other category was made by reference to the Hardial Singh principles.

54.  She said the detention has had profound negative impact on both herself and her daughter:

(1)  Her daughter has a right to stay together with her mother.  Such right is protected by the Convention on the Rights of Child. The separation also has a detrimental effect on her daughter’s well-being, especially in the early years of her personal growth and social development.

(2)  She has been suffering from separation anxiety due to being separated from her daughter.  She has developed psychological trauma.  Under article 15 of the Hong Kong Bill of Rights, she, as a parent, is entitled to ensure the religious and moral education of her daughter is in conformity with her convictions.

(3)  One of the grounds relied upon by the Director in refusing to grant recognizance was her lack of family ties in Hong Kong. She questioned if her daughter was considered as part of her family.

55.  The submissions made by reference to the Hardial Singh principles were broadly:

(1)  She has been detained for 26 months, which length is clearly unreasonable.

(2)  Her detention has become indefinite since the Director or Secretary are not be able to remove her within a reasonable period of time.

(3)  The Director and Secretary are using the detention power for the improper purpose of protecting the Hong Kong public. She is not being remanded for a criminal offence she committed.

(4)  There has been a period of administrative inactivity and the absence of promptitude in effecting the Applicant’s removal.

56.  At the oral hearing, the Applicant indicated that she had no further submissions to make, either at the beginning of the hearing, or in reply to the oral submissions made by Ms Zhi (which essentially highlighted some of the points previously made by her in the initial response). 

57.  I will bear all the Applicant’s points in mind in my analysis below as appropriate.  But I also specifically remind myself that the burden is on the Director/Secretary to establish that not only was there apparent lawful authority for the detention of the Applicant throughout the period of detention, but also to establish that continued detention did not become (and will in the foreseeable future not become) unreasonable in all the circumstances, and hence unlawful.

I.    Whether Detention has become unlawful

58.  There was and remains clear prima facie lawful authority for the detention of the Applicant throughout the whole period.  She was detained pursuant to section 37ZK, Section 32(3A), Section 29 and then Section 32(3) of the Ordinance.

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

60.  I can address the Hardial Singh principles broadly below.  The starting point is that the Applicant has been detained up to today for a period of 906 days or about 2½ years.  This is a very substantial period of time, and it is against that period that the other factors are to be weighed and balanced.

61.  There is no basis to suggest that the Secretary or Director have been using the detention powers for otherwise than facilitating removal or deportation of the Applicant.  Whilst the Applicant’s criminal record was relied upon as a factor in support of continued detention, this does not mean that the Applicant was detained for the purpose of protecting the Hong Kong public.  HS1 is satisfied.

62.  I also accept that that, generally, the Director has been acting with reasonable diligence and expedition in effecting the removal.  There were clear efforts on the part of the Director in securing/renewing a valid travel document for both the Applicant and her daughter.  The Applicant’s replacement passport was first issued as early as in 28 February 2021, in less than 2 weeks after the present detention started.  Further efforts resulted in the issuance of another passport for the Applicant in October 2022 and then to the daughter in May 2023. Liaison for repatriation arrangement for both the Applicant and the daughter was also promptly initiated in around June 2023.

63.  I have some hesitation regarding the period running from 16 September 2021 (when the CFI dismissed the leave application) to 5 May 2022 (when the Applicant re-activated the legal process by filing a time extension summons).  The Applicant was in possession of a valid passport since 28 February 2021 (expiring on 28 February 2022). Thus, there was a period of 5 to 6 months (from September 2021 to February 2022) when the Applicant was free of any removal obstacle.  I note that the daughter did not have her passport issued until May 2023, but at the same time it may also be noted that somehow the Director only started to seek assistance from the Consulate for the daughter’s passport in November 2021, when such efforts could have started the same time as the mother.

64.  I also have some real concern as to whether the Director has performed sufficiently regular and frequent reviews of detention in this case.  On the other hand, I note that in particular in the later reviews there is clear evidence of senior immigration officers applying independent thought processes to their recommendations, as shown by their handwritten notes.

65.  Further, as recorded in the Director’s internal minutes, after the disposal of the leave application in September 2021, the Applicant consistently indicated that she would “lodge JR” or further pursue her claim on numerous occasions, albeit such action was ultimately only taken in May 2022.  In light of her intimation to institute further legal proceedings, it might not have been apt for the Director to remove her anyway under the old removal policy.  On balance, I am satisfied that HS4 is met.

66.  The period of detention has been unfortunately extremely long.  It had taken a long time to resolve both the NRC related removal obstacle and to obtain a travel document for not only the Applicant but also her daughter.

67.  The legal proceedings arising from the joint NRC had only ceased to be a removal impediment by the change of removal policy on 7 December 2022. Before that, this impediment had been kept alive in an on-and-off manner by the various applications instituted (and intimations given) by the Applicant.  There is also some force in Ms Zhi’s submission that the Applicant’s own approach to her NRC – including withdrawing it, then requesting it to be reopened, and making various appeals out of time – has necessarily contributed to the time required for determining the NRC.  The Applicant’s NRC appeal was waiting to be heard by the Board at the time when she was taken into custody.  When the NRC failed at the Board level, she kept the NRC alive intermittently by instituting a judicial review application, an application for extension of time to appeal against the CFI’s refusal, and a renewed extension of time application before the CA.

68.  It is open for the Applicant to stand on her legal rights.  But she does not have to.  Doing so would inevitably delay her own removal, which would have the effect of immediately releasing her from detention, albeit in Indonesia.  I also note that the Applicant had not always been pursuing the joint NRC with her daughter with promptitude.  I have already noted the 7 months between the refusal of leave application and the time extension summons to appeal against the CFI’s refusal.

69.  I also agree with the Director that the period of detention was unnecessarily lengthened partly due to the Applicant’s conscious decisions to obstruct the removal of herself and her daughter by refusing to cooperate in applying for travel documents.  The travel documents for both of them could have been issued much earlier (perhaps before 7 December 2022) had the Applicant promptly rendered assistance in the process.

70.  I recognize that the separation of a young child from her mother for 2½ years must necessarily have affected the child profoundly, as well as the mother.  This must have been a weighty factor in the assessment as to whether the Applicant should be released from detention in order to allow her to take care of her daughter.  The reference to lack of family ties in Hong Kong recorded in the earlier “Notice of Review of Detention” is likely to a typographical error, since the daughter’s situation was noted in the very first notice.  I accept that the daughter has always been factored into the Director’s assessment.

71.  Ms Zhi submits that there is no reason to suggest that the daughter has not been properly taken care of by the ISS.  Ms Zhi also submits that the Applicant and the daughter will be able to reunite tomorrow, upon their being removed together to Indonesia.  Indeed, the Applicant could have reunited with the daughter much earlier (albeit not in Hong Kong) had the Applicant chosen to resolve, rather than to create, obstacles standing on the path to removal.  Further, it might be thought that there is some tension or inconsistency between (a) the Applicant’s statement that she has been concerned about the separation from her daughter, and (b) the Applicant’s actions which have necessarily delayed the Applicant being able to reunite with her daughter.

72.  Of course, there is no escape from the fact that the Applicant has been detained for an extremely long period of time. Therefore, I have necessarily carefully considered if there was any point in time, throughout the 2½ years, where the Director should have decided to release the Applicant, taking into account the prospect of removal and the impact on the daughter, alongside other factors.  I think that there is perhaps no clear answer to this, not least where it is important not to (but difficult not to) apply the benefit of hindsight.  But, ultimately, I think it is not a question which I now need to answer.  In the overall circumstances I have described, even if the Director might have released the Applicant on recognizance at some earlier point, I think he would have been entitled to take the Applicant back into detention for a period of time before effecting repatriation.  Further, it may well be thought that had the Applicant been released, she would have been even more uncooperative in facilitating the re-entry formalities necessary for the removal of herself and the daughter.

73.  In any event, as it now stands, there is no legal impediment for both the Applicant and the daughter, and the repatriation flight is fixed for tomorrow.  In the Court’s resolution of this habeas corpus application, one factor which requires balancing is the risk of the Applicant not appearing at the airport tomorrow if she were to be released from custody now, against the less than 24 hours’ extra time she will be detained and so still be separated from her daughter.  I have little difficulty in deciding that she should be further detained for one more day, after which she will then be able to reunite with her daughter, upon removal from Hong Kong.

74.  I note that the Applicant has consistently stated in interviews with various immigration officers that she will not cooperate with repatriation efforts.  I have already set out above the extent to which that has already been demonstrated.  However, it seems to me that if the Applicant’s stated concerns about her daughter – and the problems which arise from mother and daughter being separated – are true, then she should certainly cooperate with the repatriation arrangements made for tomorrow. Albeit not for the purposes of living in Hong Kong, the Applicant can and should be reunited with her daughter tomorrow, and they can live together properly as mother and daughter, as the Applicant professes is her desire.  I hope I will be forgiven for expressing my hope to the Applicant that she will indeed act in line with her stated desire, and in line with what she says is in the best interests of her daughter.

75.  Overall, weighing the period of detention – and recognising that it is the lengthy period of about 2½ years – against all the other factors, I am just satisfied that HS2 and HS3 are met.

J.    Result

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