MD KAMRUL ISLAM v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 511/2023

[2023] HKCFI 1040

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 511 OF 2023

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BETWEEN

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D E C I S I O N

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A. Introduction

1.  The Applicant has been held in immigration detention since 16 November 2022, pending his removal from Hong Kong. To the date of this hearing, the period of detention has lasted 155 days, or slightly over five months.

2.  The detention is authorised by section 32(3) of the Immigration Ordinance (“Ordinance”) which permits the detention of a person against whom a deportation order has been issued. Such a Deportation Order was issued against the Applicant on 7 June 2002. The order remains valid and subsisting.

3.  On the 30 March 2023, the Applicant applied for writ of habeas corpus on the ground that his detention has become unlawful by reference to Hardial Singh principles.

4.  On 31 March 2023, I gave leave for the Respondents to file and serve their response to the application and the necessary directions to bring the matter to today’s hearing. At the hearing, the Respondents were represented by Ms Lynne Hui, Government Counsel. The Applicant appeared in person with the benefit of the Bengali/English interpreter.

5.  This is my Decision.

B. Factual Background

6.  The Applicant is a Bangladesh National born in 1969.

7.  The Applicant is a returned deportee. This is the third occasion the Director attempts to remove him from Hong Kong pursuant to the same Deportation Order, and the fifth occasion if removals under different authorities are also taken into account.

8.  The four previous removals occurred in 1993, 2001, 2002, and 2004. Every removal followed a criminal conviction and imprisonment. Obviously, he came back to Hong Kong every time after he was removed or there would be no need to remove him multiple times. He used a different name every time when he re-entered Hong Kong.

9.  After he was deported in 2004, he again, using a fifth identity, re-entered Hong Kong in April 2007 and did not wait until long to commit another criminal offence. However, he was not swiftly deported this time, unlike the previous occasions. This is because he had lodged a non-refoulement claim (“NRC”), a few months after he entered Hong Kong. Thus, he has been allowed to stay in Hong Kong illegally since 2007 pending the resolution of his NRC.

C. Criminal Records & Absconding History

10.  This is a summary of his past convictions and sentencing record:

(1) In 1993, he was sentenced to 1 months’ imprisonment suspended for two years for breach of condition of stay.

(2) In 2001, he was sentenced to 14 days’ imprisonment, also for breach of condition of stay.

(3) In 2002, he was sentenced to a total of six months for (a) making false representations to immigration officer and (b) breach of condition of stay.

(4) In 2004, he was sentenced to a total of 18 months for (a) making false representations to immigration officer and (b) breach of condition of stay.

(5) In 2007, he was sentenced to a total of 23 months for (a) unlawfully remaining in Hong Kong and (b) breach of deportation order.

(6) In 2009, he was sentenced to a total of three months for (a) assault occasioning actual bodily harm and (b) possession of offensive weapon.

(7) In 2022, he was sentenced to 15 months for taking employment while being a person in respect of whom a removal order or deportation order is in force.

11.  The Applicant failed to report for immigration recognizance once on 2 November 2012. He only resurfaced more than 15 months later on 7 February 2014 when he was arrested by the police.

D. The Applicant’s Non-refoulement Claim

12.  When the Applicant first lodged his NRC in 2007, the only applicable ground was torture risk. His claim based on torture risk was rejected by the Director in 2012.

13.  After more grounds became available for those claiming non-refoulement following developments in the case law, the Applicant lodged his NRC again based on other applicable grounds. His NRC was rejected by the Director on all applicable grounds except torture risk in 2018.

14.  In the same year, he appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”), which rejected the appeal in August 2019.

15.  In September 2019, the Applicant applied to the Court of First Instance (“CFI”) for leave to challenge the Board’s decision by way of judicial review. The resolution of the leave application is still pending. But by letter dated 31 January 2023, the DOJ, on behalf of the Director, had informed the Court that the Applicant is currently held in detention and urged for priority to be accorded to this case. By letter dated 17 February 2023, the High Court Judge to whom this case has been assigned informed the DOJ that the Call-1 Form will be ready for handing down as soon as possible or in late April 2023.

16.  It is relevant to note that there has been a change in the removal policy adopted by the Government after the present detention had begun. With effect from 7 December 2022, after the NRC proceedings have reached the stage of being rejected by the CFI either by way of a leave decision or substantive decision, as long as the CFI’s refusal remains valid, further appeals to the higher courts will not usually be seen as an impediment to removal.

E. Steps Towards Removal

17.  As is usual in habeas corpus applications raised by NRC claimants, the major obstacles to removal in the Applicant’s case are his ongoing judicial review proceedings arising from his NRC and the need to replace his passports which had all expired and were held in other names.

18.  I have set out the relevant chronology pertaining to his NRC related proceedings above.

19.  As for the passport, the Director has started liaising with the Consulate General of the People’s Republic of Bangladesh since 30 December 2022 to request for issuance of a travel document for the Applicant’s deportation. According to the chronology provided to me, it appears that the Applicant had not been cooperative in completing the necessary formalities or application procedures. But, in any event, the application procedures were eventually completed, and the Consulate General issued a travel permit for the Applicant on 6 April 2023. The travel permit will remain valid for a period of three months.

20.  The Applicant has been regularly interviewed by the Director to ascertain his unwillingness to return to Bangladesh. The Applicant has been ambivalent in this regard. In the phone interview conducted on 13 March 2023, he said he was willing to return to his home country and requested for early repatriation. But he has generally indicated unwillingness on other occasions.

F. Review of Detention/ Notice of Detention

21.  During the currency of the present detention, the Applicant’s detention was reviewed once by the Secretary and the Director, and it was decided on 10 March 2023 that the Applicant was to be continued to be detained rather than released on recognizance. The grounds relied upon are that (a) the Applicant’s removal is going to be possible within a reasonable time; (b) he poses or is likely to pose a threat or security risk to the community; (c) he may have gone and/ or reoffend; (d) he does not have close connection of fixed abode in Hong Kong; and (e) there are no other circumstances in favour of his release. References were made to his criminal record, absconding record, unwillingness in completing the re-entry formalities and the Court’s own estimation that the judicial review leave application will be resolved in late April 2023.

G. Applicable Principles

22.  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.

H. Applicant’s Submissions

23.  In the affirmation filed in support of this habeas corpus application, the Applicant put forward the following grounds (in my summary of them):

(1) The purpose of detention is to effect removal rather than to prevent the detainee from reoffending.

(2) He has an ongoing judicial review leave application, which constitutes an impediment to removal even under the latest removal policy.

(3) The Director has done nothing to expedite the judicial review proceedings or to facilitate his deportation.

(4) The crimes he committed do not involve violence and there is no basis to say that he is a threat to society.

(5) He promises that he will not take unlawful employment in the future and he will never abscond again.

(6) He has been detained for an unreasonably long time.

24.  At the oral hearing, the Applicant made further lengthy oral submissions. The thrust of those submissions was (in my summary of them):

(1) His case officer has not been helpful in response to his enquiries about obtaining release on bail.

(2) The problems in his home country have not been resolved, but he would return to that country after his JR proceedings have concluded.

(3) However, his JR proceedings have not been concluded.

(4) There was a hearing on 20 March 2023, but there is as yet no decision.

(5) Even when the decision comes, there may be opportunities for further hearings, but he will not get them.

(6) He has nevertheless been held in detention for 5 months, following the 15 months’ imprisonment for his illegal employment conviction.

(7) But he has not committed any offence to justify those 5 months, and it is very unfair to him for him to be detained.

(8) It is also unfair that he has been detained when he thinks that other persons with more serious criminal records have been released.

(9) Indeed, he has not been involved in any “evil work” in Hong Kong, and the conviction for assault was the result of the complaint against him being fabricated (but he had no money to afford a lawyer to defend the charge).

(10) He has eye and heart medical problems, but the doctor in the detention centre has not been helpful, and has only prescribed Panadol.

(11) When he was released on recognizance in 2014, he provided $1,000 as bail money. But he has never had the money returned to him, and his case officer says that it will not be returned.

(12) He has no knowledge of the law, and does not need to know about his travel document, because unless his case is completed he shall not go back to his country.

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

I. Whether Detention has become unlawful

26.  The deportation order remains extant. Therefore, there was and remains clear prima facie lawful authority for the detention of the Applicant. Contrary to the apparent suggestion otherwise made by the Applicant, that lawful authority for detention does not depend upon the Applicant facing any criminal charge, or having been subject to a criminal conviction. In light of the apparent lawful authority for detention, the question then arises whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

27.  It is not part of that question whether the Applicant should be permitted to remain in Hong Kong. That was a question raised by his NRC, the unsatisfactory conclusion of which he now has sought to challenge through the application for leave to apply for judicial review. For present purposes, the question to be answered is whether the Applicant can continue lawfully to be detained pending his anticipated (and intended) removal or deportation.

28.  The starting point is that the Applicant has been detained up to today for a period of 155 days, or a little over five months. It is against that period that the other factors are to be weighed and balanced.

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

30.  I accept that the Director has always been using the detention powers for the purpose of deportation. If the Applicant, by referring to the point that detention is not for the purpose of preventing a detainee from reoffending, alleges that somehow the Director has been detaining the him to prevent further crimes rather than to facilitate his deportation, that assertion is unsubstantiated by any evidence. Whilst the Director is entitled to take into account the risk of reoffending when considering whether the detainee should be released on recognizance, that does not mean the detention was and is not for the purpose of deportation. HS1 is satisfied.

31.  HS4 is also plainly satisfied. In contrast to what the Applicant asserted in his affirmation, obviously the Director has taken active steps in expediting the outstanding judicial review leave application and the deportation generally. I have referred to the letter issued by the DOJ urging the Court to accord priority to the Applicant’s leave application and the Director’s efforts in securing the issuance of a replacement passport. Efforts on both fronts have already come to fruition. The leave application is expected to be resolved soon and a valid travel permit has already be issued to the Applicant.

32.  In view of the change of policy in December 2022 and the fact that the Applicant’s NRC related proceedings was already at the stage of pending the leave decision from the CFI, I agree that it was reasonable to expect this matter to cease being a removal obstacle fairly soon throughout the detention period. The position has now become even clearer with the Court’s own estimation that it will resolve the leave application by late April.

33.  It is not wrong for the Applicant to submit that the current leave application still constitutes a removal obstacle even under the latest removal policy. But it does not mean that the Applicant must be released on recognizance whilst the leave application is being processed, when it is now fairly certain that a decision will be given soon. Unless leave to apply for judicial review is granted by the coming decision expected from the CFI before the end of April (namely within the next two weeks), it would appear that any legal obstacle to removal would by that date have been removed.

34.  There also appeared to be no reason to suspect that a replacement travel document would not be issued by the Consulate General upon the completion of the necessary formalities. As a matter of fact, the only difficulty in the process seemed to have stemmed from the Applicant’s own lack of cooperation. In any event, a travel document has now been issued.

35.  With the cessation of any legal obstacle to removal, and with the benefit of the relevant travel document and necessary formalities, it appears that the Applicant could be removed or deported from Hong Kong reasonably shortly after the end of April 2023.

36.  I also agree with the Director’s assessment on the risk of reoffending and of absconding, in light of his criminal record and absconding record. Whilst most of the Applicant’s criminal record concern immigration offences, he did have a record of assault occasioning bodily harm and he could not claim to have not committed any violent crimes. Now is not the occasion to deal with any suggestion that the assault charge was somehow fabricated, and I will not look behind the fact of conviction. In any event, the other convictions are also serious offences as reflected in the sentences passed by the criminal courts.

37.  The fact that he had repeatedly come back to Hong Kong despite having been removed four times, further adds to the risk of absconding when the time for repatriation (for the fifth time) draws closer. It seems to me that the risk of absconding is particularly high in this case. Absconding would frustrate the purpose for which the power of detention is given in the first place.

38.  Nor do there seem to me to be any other factors pointing in favour of release on recognizance. There is no reason to think that the Applicant would not be able to avail himself of suitable medical attention whilst in detention should he need it. There is medical staff available to him, and it is well known that more serious medical cases will receive external medical attention.

39.  Though not central to the determination of the matter now before the court, I note Ms Hui’s explanation that the $1,000 bail money was not returned to the Applicant because he broke the conditions of his release by taking illegal employment, for which he was convicted.

40.  Weighing the period of detention – 155 days, or about 5 months – against all the other factors, I am satisfied that the detention of the Applicant has to date remained and will for the foreseeable future remain or continue for a period which is reasonable and lawful. HS2 and HS3 are satisfied.

J. Result

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