MD RAJIB v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 464/2024

[2024] HKCFI 1708

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 464 OF 2024

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DECISION

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1.   Introduction

1.1  The Applicant is subject to a Removal Order made on 3 May 2016.  He has been held in immigration detention since 5 January 2024 pursuant to section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”).  As at the date of the hearing before me, he has been detained for around 5.5 months.

1.2  This is my decision of the Applicant’s application made on 14 March 2024 for a writ of habeas corpus.  At the hearing, the Applicant appeared in person, with the benefit of an interpreter.  Mr Jinson Cheng, Government Counsel, appeared for the Director of Immigration (“Director”).  The Secretary for Security, although named as the 2^nd Respondent, has not entered an appearance as the power under section 32(3A) to detain the Applicant is only conferred upon and exercised by the Director.

2.   Background

2.1  The Applicant is a Bangladeshi national.

2.2  The Applicant first came to Hong Kong on the strength of his Bangladeshi passport in September 2006 and was permitted to remain as a visitor until 7 September 2006.  However, he did not depart as required and had overstayed in Hong Kong since 8 September 2006.  Having overstayed in Hong Kong for more than 7 months, the Applicant was arrested by the Police for overstaying on 14 April 2007.  On 2 November 2007, the Applicant was repatriated to Bangladesh.

2.3  On 9 March 2008, the Applicant was arrested again by the Police for illegal remaining in Hong Kong.  Upon enquiry, the Applicant claimed that he entered Hong Kong illegally on 3 March 2008.  On 20 April 2009, the Applicant was repatriated to Bangladesh for the second time.

2.4  On 5 July 2015, the Applicant entered Hong Kong illegally from Mainland. On 15 July 2015, the Applicant surrendered to the Immigration Department for illegal remaining in Hong Kong.  He was subsequently released on recognizance on 20 August 2015.

2.5  During the Applicant's release on recognizance, he was convicted of the offence of trafficking in a dangerous drug on 9 July 2019 and was sentenced to 9 years' imprisonment.  The present detention commenced upon the Applicant’s discharge from prison on 5 January 2024.

2.6  The Applicant has no family ties in Hong Kong.

2.7  The Applicant’s NRC was refused by the Director on 19 October 2017 and his appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was dismissed on 29 May 2019.

3.   Present detention and its reviews

3.1  There is a dispute whether the Applicant had indicated his unwillingness to return to his home country.  What is undisputed is that the Applicant has rendered his cooperation in terms of completing the reentry formalities.

3.2  Prior to and during the present detention, the Immigration Department has closely liaised with the local Consulate General of the People's Republic of Bangladesh ("CG"), requesting assistance to issue a replacement travel document to the Applicant.  As matters presently stand, it is anticipated that the Applicant’s travel permit will be issued in early July 2024.

3.3  The Applicant’s detention was recently reviewed on 14 June 2024.  The Director decided not to release the Applicant on recognizance on the following grounds:

(1)  the Applicant's removal is going to be possible within a reasonable time;

(2)  the Applicant poses, or is likely to pose, a threat or security risk to the community;

(3)  the Applicant may abscond and /or (re)offend;

(4)  the Applicant does not have close connection or fixed abode in Hong Kong;

(5)  there are no other circumstances in favour of the Applicant's release.

4.   The Applicant’s submissions

4.1  The Applicant’s written materials put forward the following matters:

(1)  the length of his detention has become reasonable;

(2)  he has rendered his cooperation in completing the reentry formalities;

(3)  he has since the commencement of the present detention expressed his wish to return to his home country;

(4)  he has never absconded while on recognizance;

(5)  there is no realistic timescale for his repatriation;

(6)  relatedly, the Director has not acted with reasonable diligence and expedition to effect his removal.

4.2  At the hearing, the Applicant supplemented as follows.  He relies on his medical conditions and the need to have surgery.   He further promises that he will comply with any bail conditions imposed.

5.   The applicable principles

5.1  The applicable principles are set out in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99.  I have in particular borne in mind the summary set out at §164 thereof.

5.2  I remind myself that the burden is on the Respondent to an application for a writ of habeas corpus to justify the lawfulness of the Applicant's detention.

5.3  Under section 32(4A) of the Ordinance, the detention of a person shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including (1) whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, (2) whether the person poses, or is likely to pose, a threat or security risk to the community, (3) whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, including the person not obtaining, or not providing assistance to obtain, any authorization from the relevant authorities of a place outside Hong Kong that is required for the person’s entry to that place and (4) factors that directly or indirectly prevent or delay the person’s removal that are not within the control of the Director.

5.4  In the present case, no allegation of unreasonableness on the part of the Applicant is relied upon by Mr Cheng.

6.   Analysis

6.1  During the present detention, the Applicant is and has been detained pursuant to section 32(3A) of the Ordinance.  It follows therefore that there is and has been prima facie lawful authority to detain the Applicant. 

6.2  The question which falls for determination is whether the detention has become unreasonable in all the circumstances, and hence unlawful.  The starting point is the period of detention, namely 5.5 months, against which the various other factors must be weighed and balanced.

6.3  In the present case, the factual matters relevant to the weighing exercise are not particularly complex.  The only impediment to the Applicant’s removal from Hong Kong is a practical one, namely the need to wait for CG to issue a  travel permit which, as stated above, is anticipated to take place in early July 2024.  There is a definite timescale for the Applicant’s removal, which is imminent.

6.4  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.  I also accept that the Director has acted with diligence and expedition to effect the Applicant's removal.  HS4 is satisfied.  As pointed out by Mr Cheng, reentry seeking in the present case was initiated even before the present detention.  The time taken for the issuance of the travel permit has perhaps taken longer than one hopes, especially in the light of the Applicant’s cooperation in the process.  It seems to me that this is one of those factors which is not within the control of the Director, as provided for under section 32(4A) of the Ordinance.

6.5  I acknowledge the fact that the Applicant does not have an absconding history (for example in the 4 years prior to his imprisonment) and he has rendered cooperation in completing the reentry formalities.  On the other hand, the Applicant does not have any close connection in Hong Kong.  The competing factors would appear to balance out each other, and it seems to me that any risk of absconding ought not feature heavily in the weighing exercise.

6.6  However, the Applicant has committed a very serious offence and was sentenced to a lengthy period of imprisonment.  I agree with Mr Cheng that the risk of (re)offending in the present case should be given substantial weight in the balancing exercise.  At the hearing, the Applicant for the first time suggested that he was set up but nevertheless accepted the sentence imposed.  I do not attach weight to the suggestion lately put forward.  It bears emphasis that the Applicant was convicted in the Court of First Instance after trial.

6.7  As regards the Applicant’s medical conditions, the contemporaneous records show that he has received proper and necessary treatment, both within the detention facilities and from outside institutions.

6.8  Overall, weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

7.   Conclusion

7.1  Therefore, the detention to date has remained lawful, and will remain lawful for this foreseeable future.

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