LAKHVIR SINGH v. DIRECTOR OF IMMIGRATION

HCAL 1282/2022

[2022] HKCFI 3776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1282 OF 2022

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J U D G M E N T

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A. Introduction

1.  The Applicant is the subject of a Deportation Order made on 19 March 2018, and had also been the subject of a Removal Order made on 28 October 2011. He is currently held in immigration detention pending removal from Hong Kong pursuant to the Deportation Order. The period of detention commenced on 26 September 2022, and has to date lasted 91 days.

2.  On 17 November 2022, the Applicant applied for writ of habeas corpus on grounds identified in his supporting affirmation. He named only the Director of Immigration (“Director”) as the Respondent to the application. The power to authorise detention under section 32(3) of the Immigration Ordinance Cap 115 (“Ordinance”) rests with the Secretary for Security (“Secretary”). But the power to offer recognizance as alternative to detention is granted to immigration officers under section 36 of the Ordinance. Insofar as necessary, I will treat both the Director and Secretary as the Respondents to this application.

3.  I gave directions to bring this matter to a hearing on 22 December 2022, with the benefit of the provision of the Respondents’ Initial Response which also stands as their Skeleton Submissions.

4.  The Applicant has appeared in person, with the benefit of a Punjabi/English interpreter. The Secretary and Director have been represented by Mr Rex Cheung, Senior Government Counsel.

5.  Having considered the materials and submissions this morning, this is my Judgment.

B.  Background Matters

B.1  Immigration Status

6.  The Applicant is an Indian national, born in 1987.

7.  On 12 May 2010, the Applicant came to Hong Kong as a visitor on the strength of his Indian passport. He did not depart before the expiry of his limit of stay on 26 May 2010, and he has been overstaying in Hong Kong ever since 27 May 2010.

8.  He resurfaced in 2011 only when he was arrested for committing offences of (a) possession of forged identity card; (b) possessing a false instrument with intent; and (c) breach of condition of stay. He was convicted on all three charges and was sentenced to 8 months’ imprisonment in total.

9.  As indicated above, a Removal Order was issued against him in 2011 and then a Deportation Order in 2018.

10.  But the procedures to remove him were put on hold for most of the time during his stay in Hong Kong. This is because he raised a torture claim/Non-refoulement claim (“NRC”) in 2011 during his term of imprisonment. The Director only re-started the removal procedures on 26 September 2022 by ceasing the recognizance previously granted to him. By that time, the Applicant’s NRC had come to stage where the Director considered that the NRC no longer amounted to a legal impediment to his removal.

B.2  Non-refoulement Claim

11.  In 2011, when the Applicant was serving his prison term, he raised a torture claim. The torture claim was then processed as a NRC in 2014 upon the implementation of the Unified Screening Mechanism (“USM”). By 2017, the Applicant’s NRC was already rejected by both the Director and then the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”). Thus, he had exhausted all administrative avenues afforded to him under the USM.

12.  Then the Applicant attempted to overturn the Board’s decision by way of judicial review. From 2018 to 2022, his attempts failed at the level of the Court of First Instance (“CFI”), the Court of Appeal (“CA”) and eventually the Court of Final Appeal (“CFA”). The Appeal Committee refused leave to appeal to the CFA on 1 April 2022.

13.  Upon the CFA’s refusal, the Director re-started the removal procedures and ultimately commenced the present detention on 26 September 2022.

14.  The Applicant tried to resurrect his NRC by requesting to file a subsequent claim (“SubC”) in May 2022 which was rejected by the Director in August 2022. On 29 September 2022, i.e. 3 days after he was detained, he sought leave from the CFI to judicially review that refusal. On 7 November 2022, the CFI dismissed his application and imposed a Restrictive Proceedings Order (“RPO”) prohibiting him from instituting any NRC related proceedings without leave.

15.  As it now stands, the only extant legal proceedings are this habeas corpus application.

B.3  Detention and Reviews of Detention

16.  From the chronology provided to me, it appears that prior to the present detention the Applicant had been briefly detained in 2011 under the Ordinance.

17.  During the present detention, the Applicant at times indicated willingness to be returned to India, but he later changed his mind. I will further refer below to this point of his willingness or not to return.

18.  He had also once, through his legal representative, asked the Director to release him on recognizance which request was rejected.

19.  On 12 December 2022, a review of detention was conducted by the PAS for S, and it was considered that there were grounds for continued detention, on the basis that the Applicant’s removal is going to be possible within a reasonable time. It was noted that there are no outstanding legal proceedings except the current habeas corpus application, a RPO has been imposed on the Applicant and that the Director has been liaising with the General Consulate of India (“Indian Consulate”) seeking permission for the Applicant’s re-entry.

20.  On 13 December 2022, the Director considered that releasing the Applicant on recognizance was not warranted. The Applicant was served with a Notice of Review of Detention. That Notice points out, amongst other things, that: (i) the Applicant’s removal from Hong Kong is immediate and/or immediate repatriation is being arranged for his departure; (ii) he has no outstanding legal proceedings pending removal; (iii) he does not have fixed abode or close connection in Hong Kong which makes it unlikely that he will be easily located; and (iv) there are no other circumstances favouring his release on recognizance.

B.4  Other Steps to Removal

21.  There were no outstanding NRC-related proceedings when the present detention began on 26 September 2022. The attempt in respect of his SubC was already dismissed on 7 November 2022, with the RPO imposed.

22.  The only impediment to removal at this stage is the Applicant’s expired Indian passport which needs replacement. His passport expired in 2020. Upon the Director’s liaison with the Indian Consulate, an emergency travel document was issued on 16 March 2021 with a validity until 15 September 2021. As the chronology indicates, the Applicant was not removed within the validity of that document.

23.  Since 2 September 2022, obviously in view of the forthcoming removal arrangement, the Director had restarted liaison with the Indian Consulate for the issuance of another replacement travel document. During the present detention, the Applicant once indicated willingness to return to India and the Director had scheduled an interview around mid-December 2022 with him to obtain his application form and to take a photograph to meet the necessary re-entry formality. But he changed his mind when it came to it.

24.  Nevertheless, as Mr Cheung has informed me this morning, it seems that the Indian Consonant has now confirmed that it will issue a travel document for the Applicant, notwithstanding that he has not himself completed the application procedure. The Director is also of the view that, since the Indian Consulate once before issued an emergency travel document to the Applicant, a replacement travel document will be issued to the Applicant within a reasonable period of time.

C.  Applicable Principles

25.  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.

26.  The summary is as follows:

(1)  The central question on an application for habeas corpus is whether there is, and continues to be, lawful authority for a detention.

(2)  An originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

(3)  What is a ‘reasonable time’ will therefore depend upon the circumstances of the particular case, taking into account all relevant factors.

(4)  The lawfulness of detention, or continuing detention, is subject to potential objectivereview by the Court. But the review is not a review as to Wednesbury unreasonableness, or on other public law grounds.

(5)  Either continuing detention is reasonable and so lawful, or it is not. Though the Court’s review involves an exercise of judgment and balance, that is not a discretionary decision.

(6)  Hence, the Court is the judge of, and the primary decision maker as to, the reasonableness of the detainee’s continued detention.

(7)  The burden of showing that detention is lawful lies upon the Secretary and Director.

(8)  The assessment will be made in line with the ‘Hardial Singh principles’, namely that:

(HS1) the Secretary/Director must intend to deport the person and can only use the power to detain for that purpose;

(HS2) the deportee may only be detained for a period that is reasonable in all the circumstances;

(HS3) 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; and

(HS4) the Secretary/Director should act with reasonable diligence and expedition to effect removal.

(9)  Any relevant factor may affect the length of time of detention that might be regarded as reasonable. Whilst in a specific case one or more factors may have especial weight, no factor is necessarily determinative.

(10)  A review of what might be regarded as a reasonable period of detention will include at least: (a) the length of the period of detention; (b) the nature of the obstacles which stand in the path of the Director preventing a deportation; (c) the diligence, speed and effectiveness of the steps taken by the Director to surmount such obstacles; (d) the conditions in which the detained person is being kept; (e) the effect of detention on him and his family; (f) the risk that if he is released from detention he will abscond (which may have the effect of defeating the deportation order); and (g) the danger that, if released, he will commit criminal offences.

(11)  It is helpful first to identify and have firmly in mind the period of detention to date, before balancing the various other factors and risks against that period. This is because the weight to be given to the other factors and risks will vary as the period of detention increases in length.

(12)  Though it might seem attractive to set guideline periods or a red line (in terms of months or years) applicable to all cases, as to the circumstances in which a lawful detention becomes unreasonable and hence unlawful, no such guidelines can be set. Indeed, any attempt to do so is unhelpful. Reference to the facts of other cases is also likely unhelpful.

(13)  Nor would it be correct to think that the longer any period of detention, the greater the scrutiny that would be applied to it. Every deprivation of liberty pending deportation requires proper scrutiny of all the facts, in accordance with the Hardial Singh principles, which are the sole guidelines.

(14)  The risks of absconding and reoffending are of critical and paramount importance in the assessment of the lawfulness of the detention.

(15)  This is because if a person absconds, it will defeat the primary purpose for which the power to detain has been conferred, and for which the detention order was made in the particular case.

(16)  However, a very careful assessment of the risk must be made in each case, as the magnitude and potential impact of that risk will vary according to the circumstances.

(17)  The risk of absconding is distinct from the risk of committing further offences, and not dependent on that further risk.

(18)  The risk of reoffending requires its own distinct assessment, by reference to both its likelihood and seriousness.

(19)  Neither risk can justify detention of any length, as that would permit indefinite detention.

(20)  The longer the detention, the greater the risk necessary to justify it.

(21)  The Court will rigorously scrutinise the Secretary/Director’s assessment of risk on both grounds, and the weight to be given to that assessment will include consideration as to how convincing the reasoning is.

(22)  When assessing (a) the probability that removal can be effected at all and (b) the proximity of the time to removal, a real sense of the timescale likely to be involved must be identified to be able to qualify it as reasonable.

(23)  There must be a sufficient prospect of removal to warrant continued detention, having regard to and balanced against the weight of all other circumstances of the case.

(24)  As the period of detention gets longer, the greater the degree of certainty and proximity of removal would be expected to be required in order to justify continued detention.

(25)  On any appeal from a first instance decision of the Court, the appellate court will not interfere with the judge’s decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts. The leeway given to the first instance judge is not as a result of the view that he has made a discretionary decision, but rather as a reflection that the balancing exercise can be difficult.

27.  I have applied those principles as applicable to the particular circumstances of this case.

D.  Applicant’s Submissions

28.  In his affirmation/written submissions filed in support of his application, the Applicant stated the grounds of his application as being that:

(1)  The present period of detention is unlawful.

(2)  He has been detained since 26 September 2022.

(3)  His NRC is at “the 2^nd JR Stage” and he wishes to stay in Hong Kong until all his claims are completed.

(4)  He is presently detained pending his NRC rather than pending his removal.

(5)  It is impossible [the document in fact says “possible” but must have been intended to read “impossible”] to remove him within a short reasonable period.

(6)  He shall not run away.

(7)  He cannot go back to his home country because he has real risk of his safety and his life is in grave danger in his country.

29.  The last point is obviously relevant to his NRC, and is not relevant to whether his continued detention pending removal is or is not lawful.

30.  His point about his NRC claim being at the “2^nd JR Stage” is but a misunderstanding of the facts. There is no “2^nd JR Stage”, and I have commented in other decisions that it is time for applicants to recognise that there is not some staged process by which the applicant can seek to put off removal or deportation from Hong Kong. It is also incorrect that he is now detained pending his NRC rather than his removal.

31.  Regarding his point that he shall not run away, I note that he has no record of absconding (though he had gone ‘underground’ following the expiry of his permission to stay until he was arrested for the offences on which he as later convicted). I will bear this point in mind in my overall assessment below.

32.  At the hearing, the Applicant handed up further written submissions and made oral submissions. Essentially he made the following broad points:

(1)  He has not been convicted of any criminal offence in Hong Kong (by which, I assume he means that he has not convicted any offence not related to his remaining illegally in Hong Kong).

(2)  He has never failed to sign for recognizance, nor missed any appointment given to him.

(3)  It is unfair and stressful for him to be detained in circumstances which are akin to, or worse than, are applied to convicted criminals in prison. Also, he has been changed location several times.

(4)  He wants to go back to his country India, as soon as possible, because his prior problem in India has been solved and it is safe for him to return and because his mother is sick.

(5)  But the Director has not extradited his travel document.

(6)  There should be no further detention, because deportation can be done whilst he is released, until the travel document is issued to him.

(7)  If released, he would comply with whatever signing requirements would be imposed on him, wherever he would be required to sign.

33.  In reply to Mr Cheung’s submission that the Applicant has changed his mind about his willingness to return to India, evidenced by his refusal to complete the application forms, the Applicant said that he refused to go back when he was asked to cancel this hearing but he does really want to go back to India and he is not lying. He wishes to be released until he can be shown the ticket for return, pending which he will sign wherever he is asked to sign.

34.  I have taken all of those matters into my consideration, as can be seen below.

E.  Whether Detention is Lawful

35.  There can be no dispute that the Deportation Order made against the Applicant is valid and subsisting. There can also be no dispute that the authority to detain the Applicant exists under section 32(3) of the Ordinance. On that basis the detention is prima facie lawful, and the question on this application is whether the overall circumstances of the detention have rendered it unreasonable, and hence unlawful.

36.  The starting point is, as always, the period of detention. In this case, and at least by comparison to many other cases, that period is relatively short, being a period of 91 days. It is against that period that the other factors are to be weighed and balanced.

37.  It is clear that the Secretary/Director intend to remove the Applicant at the earliest possible opportunity, and the power of detention is being used only for that purpose. The Applicant will, of course, be released from detention when he is removed from Hong Kong.

38.  There are no outstanding legal proceedings as may provide any legal impediment to his removal.

39.  The only obstacle in the way of immediate removal is the need for a replacement travel document for the Applicant. During the relatively short period of detention, the Director has been in active liaison with the Indian Consulate in respect of the issuance of a travel document for the Applicant. Indeed, as already covered above, the Director once successfully obtained an emergency travel document for the Applicant in 2021, even before the present detention commenced. Although that document has expired and the Applicant has appeared (at least at some times) to be reluctant to facilitate his own re-entry process by completing the necessary formalities, I agree with the Director that there is good prospect that the Indian Consulate will issue another emergency travel document like it did once before in the near future.

40.  I note that the Applicant has been equivocal as to whether he is willing to return to India. Even though he has sought to explain the equivocation, the fact is that the Applicant has been inconsistent in his expression of whether he is willing to return. Whatever the reason for doing so was, on the last occasion when the Applicant might have completed the forms himself, he refused to do so. Such inconsistency does nothing to allay concerns as to potential absconding. Of course, if the Applicant is right that he is now firmly committed and willing to be removed from Hong Kong for return to India as soon as possible, it may even be possible that he can now help to expedite the provision of the travel document. If so, that would only improve the prospects that the Indian Consulate would issue another emergency travel document in the near future, thus bringing forward the date on which the Applicant could be removed so as to end his detention.

41.  I bear in mind that other than the three offences he committed in 2011, he has otherwise maintained a clean record in his decade-long stay in Hong Kong. He promised not to run away if he is to be released on recognizance and I have already noted that he has no absconding record in the past.

42.  But the Applicant remains the subject of a Deportation Order and the Director is entitled to remove him and to detain him for a reasonable period of time to facilitate the intended removal. During the 91 days of detention, there was a substantial period of more than a month where he by his own choice had created a legal impediment by attempting to resurrect his NRC in the CFI, even though the claim had already been rejected all the way up to the CFA (though I also note that by at least late October 2022 the Applicant indicated he wished to withdraw his CFI proceedings). The issuance of a replacement travel document could also have been more speedily dealt with had he been cooperative in and throughout the process.

43.  In the overall circumstances, and on balance, I reach the conclusion that the Applicant has been detained, and will likely be detained, only for a period that is reasonable in all the circumstances. Therefore, his detention has been and continues to be Hardial Singh compliant, and lawful.

F.  Result

44.  The Applicant’s application for writ of habeas corpus is dismissed, with no order as to costs.