SHILPE FARHANA EASMIN v. DIRECTOR OF IMMIGRATION

HCAL 2022/2023

[2023] HKCFI 3339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2022 OF 2023

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BETWEEN

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DECISION

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1.   Introduction

1.1  The Applicant is subject to a Removal Order (“RO”) and a Deportation Order (“DO”) made respectively on 24 August 2015 and 29 November 2023. She has been held in immigration detention since 22 August 2023 pursuant to various sections of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the hearing before me, the Applicant has been detained for a period of 122 days.

1.2  On 14 November 2023, the Applicant applied for a writ of habeas corpus, naming Director of Immigration (“Director“) as the Respondent. Directions were thereafter given for the Respondent to file an initial response. At the hearing, the Applicant appeared in person, with the benefit of an interpreter. In the initial response signed by Ms Kristy Tse, Government Counsel, it is clarified that the Secretary for Security (“Secretary”) is also a relevant party as part of the Applicant’s detention was authorized by the Secretary, and the initial response was prepared for both the Director and the Secretary. I proceed on the basis that the Secretary has been joined in these proceedings.

2.   Background

2.1  The Applicant is a Bangladeshi national. On 25 May 2015, the Applicant arrived in Hong Kong to work as a domestic helper. The Applicant’s employment contract was terminated on 30 June 2015, but she did not depart Hong Kong as required and overstayed in Hong Kong. She was arrested by the police on 23 July 2015 and referred to the Immigration Department for further investigation. The Applicant raised a non-refoulement claim (“NRC”) on 26 July 2015 and she was released on recognizance on 12 September 2015.

2.2  Whilst on recognizance, on 29 January 2019, the Applicant was convicted of “taking employment or joining in business while a removal order was in force” and “soliciting for an immoral purpose” and sentenced to 15 months’ imprisonment. After serving her sentence, the Applicant was detained on 17 September 2019 until released on recognizance on 7 November 2019.

2.3  On 22 August 2023, the Applicant’s recognizance was ceased.

(1) Between 22 August and 17 November 2023, the Applicant was detained pursuant to section 32(3A) of the Ordinance pending removal under the RO.

(2) Between 17 and 29 November 2023, the Applicant was detained pursuant to section 29(1) of the Ordinance pending inquiry as to whether a DO ought to be made against the Applicant.

(3) From 29 November 2023 onwards, the Applicant has been detained pursuant to section 32(3) of the Ordinance pending removal under the DO.

2.4  The Applicant has offered a guarantor, one Mr Zubair Mohammad whom she claims to be a close friend.

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

3.1  As stated above, the Applicant raised her NRC on 26 July 2015.

3.2  On 23 October 2018, the Applicant’s NRC was rejected by the Director.

3.3  On 23 October 2019, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”) dismissed the Applicant’s appeal/petition against the refusal decision of her NRC (“TCAB’s Decision”).

3.4  On 28 October 2019, the Applicant applied for leave to apply for judicial review against TCAB’s Decision (HCAL 3183/2019). Since the Applicant’s detention, efforts were made to expedite the resolution of HCAL 3183/2019. Judgment is now expected to be handed down in late December 2023.

4.   Current detention and its reviews

4.1  The Applicant has throughout the present detention expressed her unwillingness to return to Bangladesh and refused to cooperate in completing the reentry formalities for the issuance of a travel document. Subject to the Applicant’s cooperation, the Consulate General of the People’s Republic of Bangladesh has indicated that a travel document can be issued around 2 weeks upon completing the reentry formalities.

4.2  In the latest assessment of the Applicant’s detention conducted on 16 November 2023 (a copy of which was handed up at the hearing upon my query), the broad grounds of the Applicant’s detention were stated to be (1) her removal is going to be possible within a reasonable time, (2) she poses or is likely to pose, a threat or security risk to the community, (3) she may abscond and/or (re)offend, and (4) she does not have close connection in Hong Kong.

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  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  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 her habeas corpus application will not look at the merits of any such claim. The central question is whether the detention has become or will foreseeably become unreasonable in all the circumstances and hence unlawful.

6.   The Applicant’s submissions

6.1  The Applicant’s submissions, in so far as they may be gleaned from her written materials, may be summarized as follows:

(1) HCAL 3183/2019 is yet to be resolved and she intends to exhaust all appeal avenues.

(2) She has not committed any criminal offence since 2019.

(3) She has offered a guarantor, namely Mr Mohammad.

(4) Her detention is causing her emotional distress, manifested by depression, headaches and ear pain.

(5) She fears for her own safety, if repatriated.

6.2  At the hearing, the Applicant confirmed her reliance on the foregoing matters and reiterated her fear for her own safety, if repatriated. She also confirmed that she had received medical examination whilst being detained although the promise to take her to further examination at external institutions had yet to materialize.

7.   Analysis

7.1  I have set out at §2.3 above the various provisions of the Ordinance pursuant to which the Applicant has been detained at various times during the current detention. Each of the provisions provides prima facie lawful authority to detain the Applicant.

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 122 days, against which the various other factors must be weighed and balanced.

7.3  I acknowledge that 122 days is objectively not a short period, and additionally, there is at present still a legal impediment for the Applicant’s removal which will remain, pursuant to the Updated Removal Policy, until the resolution of HCAL 3183/2019.

7.4  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.

7.5  I also accept that the Director has acted with diligence and expedition to effect the Applicant’s removal. This is amply demonstrated by arrangements made for the issuance of a travel document and to expedite the resolution of HCAL 3183/2019. HS4 is satisfied.

7.6  Although there is currently a legal impediment to removal, I have considered TCAB’s Decision, which contains a detailed analysis and reasons for TCAB’s conclusion that the Applicant was not entitled to non-refoulement protection in Hong Kong. In any event, judgment in HCAL 3183/2019 is expected shortly. Were the Applicant successful, I have no doubt that her continued detention will be re-assessed in that light.

7.7  I accept Ms Tse’s submission that taking into account (1) the Applicant’s strong unwillingness to return to Bangladesh and (2) her uncooperative attitude, the risk of absconding cannot be considered low. Absconding would defeat the primary purpose of effecting removal, for which the power to detain has been conferred. I do not regard the offer of Mr Mohammad as a guarantor has the effect of outweighing the foregoing risks.

7.8  Although the Applicant does not have a clear criminal record, I acknowledge that the offences were committed some time ago and did not have the effect of deterring the granting of recognizance to the Applicant in late 2019.

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

7.10  As regards the Applicant’s claimed medical conditions, I accept Ms Tse’s submissions that, the Applicant’s claimed conditions would have been dealt with by the medical officers stationed at the place of detention, or if justified, by obtaining treatment offsite from government hospitals. Indeed, at the hearing, the Applicant confirmed that the foregoing to be the case.

7.11  For the above reasons, HS2 and HS3 are also satisfied.

8.   Conclusion

8.1  I am satisfied that the Applicant’s detention, and likely foreseeable future period of detention, has been and will remain lawful.

8.2  As a result, the Applicant’s application is dismissed with no order as to costs.