SUKHPAL SINGH v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1832/2023

[2023] HKCFI 3199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1832 OF 2023

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JUDGMENT

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A.  Application

1.  By an ex parte application dated 12 October 2023, the Applicant applies for a writ of habeas corpus, pursuant to Order 54 rule 1 of the Rules of the High Court (Cap 4A). The Applicant thereby seeks release from the custody of the Correctional Services Department.

2.  As the present detention is authorised by the Director of Immigration (the “Director”) as well as the Secretary for Security (the “Secretary”), the Secretary should also be one of the respondents to this application.

B.  Background of Applicant

3.  The Applicant is an Indian national born on 5 May 1974 who entered Hong Kong on 9 August 2005 on the strength of his Indian passport and was permitted to remain as a visitor until 12 August 2005. He overstayed in Hong Kong thereafter and was arrested on 20 August 2006. He was released on recognizance on 12 October 2006.

4.  A removal order was issued against the Applicant on 4 November 2010 (the “Removal Order”). After having been convicted of multiple serious offences (see paragraph 15 hereinbelow), a deportation order was issued against the Applicant on 26 September 2022 (the “Deportation Order”). After his release from prison, the Applicant was transferred to the Tai Tam Gap Correctional Institution on 28 December 2021 and had been detained since then. As at the hearing date, the Applicant would have been detained for 707 days.

5.  The Applicant’s Indian passport had expired on 4 November 2014.

C.  Asylum/Non-refoulment claim related proceedings

6.  The Applicant registered a request for asylum to the United Nations High Commissioner for Refugees (the “UNHCR”) on 14 August 2005 (the “Asylum Claim”) which was refused on 16 August 2006. He indicated on 24 August 2006 an intention to appeal against the refusal of the Asylum Claim which was not proceeded with. The Asylum Claim was closed by the UNHCR on 31 August 2007.

7.  The Applicant also lodged a claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”) on 22 August 2006, which was considered by the Torture Claim Assessment Section as withdrawn 6.5 years later on 6 March 2013 as the Applicant had failed to return a torture claim form.

8.  By a written representation dated 20 November 2013, the Applicant claimed that he would face great danger if he returned to India and sought to lodge a non-refoulement claim (“NRC”). However, despite numerous attempts by the Immigration Department to contact the Applicant, the Applicant could not be located and the Applicant was informed by a letter dated 27 April 2018 that no further action would be taken on his NRC.

9.  The Applicant then raised a NRC on 25 April 2022 (9 years after he first sought to lodge a NRC in 2013). This was rejected by the Director of Immigration on 19 July 2022 (the “Director’s Decision”).

10.  No appeal against the Director’s Decision was brought by the Applicant until more than a year later, on 24 July 2023 (well after the 14 days prescribed time for the lodging of such notice of appeal). The late filing of the appeal notice was refused by the Torture Claims Appeal Board on 17 August 2023 (the “TCAB Decision”).

11.  About 2 months thereafter, the Applicant then lodged an application for leave to apply for judicial review on 25 October 2023 against the TCAB Decision (the “JR Application”) in HCAL 1919/2023.

12.  The hearing for the JR Application took place on 29 November 2023. Apparently, the Applicant indicated to the court that he had applied for legal aid in HCAL 1919/2023 and as a result the matter has been stayed until 17 January 2024. The Applicant’s application for legal aid was refused on 1 December 2023.

13.  The Immigration Department’s removal policy since 7 December 2022 is that once a NRC claimant's subsequent legal proceedings have reached the stage of having been rejected by the Court of First Instance, the existence of further proceedings will not normally be considered by the authority as an impediment to removal.

14.  As such, there is a legal impediment to the Applicant’s removal until the Court of First Instance’s determination of the JR Application, after the hearing currently scheduled for 11 December 2023.

D.  Abscondence Record and Criminal Record & Sentencing Record

15.  The Applicant’s criminal and sentencing records are as follows:

Date of Sentence	Offence	Period of Imprisonment
7 January 2010	Theft	16 months
19 January 2016	Possession of a dangerous drug	2 months
27 November 2020	2 counts of trafficking in a dangerous drug	2 years and 4 months (concurrent)
7 December 2021	Inviting a person to become a member of a triad society	4 months
	Claiming to be a member of a triad society	3 months (concurrent)

16.  The record of the Applicant’s abscondence is as follows:

Date of failure to report recognizance/court bail/police bail	Period of Abscondence	Explanation
11 May 2009	3.5 months until re-arrest by the police on 25 August 2009 as a wanted person	No money for transportation
9 December 2009	1 month - reappeared in court for sentence to 16 months’ imprisonment on 7 January 2010	Forgot the date
25 February 2011	1 year - Upon re-arrest by police 1 year later on 16 February 2012 as a wanted person	Forgot the date for reporting, no money for surety
11 March 2013	8 months - Upon re-arrest by the police as a wanted person on 17 November 2013	No money for transportation
24 June 2014	15 months - Upon re-arrest by the police as a wanted person on 22 September 2015	No money for transportation
28 October 2015	2 weeks - Upon re-arrest by the police as a wanted person on 15 November 2015 for possession of a dangerous drug	No money for transportation
1 April 2016	17 months - Upon re-arrest by the police for theft of bicycles on 17 September 2017	No money for transportation
24 October 2017	28 months - Upon re-arrest by the police on 11 February 2020	No money for transportation

E.  Steps towards Removal

17.  Prior to the present detention, the Immigration had written to the Consulate General of India (the “IND CG”) in April and July 2021, seeking verification of the Applicant’s identity and issuance of a travel document. The Applicant’s identity was confirmed by the IND CG on 3 August 2021.

18.  Shortly after the commencement of his present detention, the Applicant indicated his unwillingness to return to India during a phone interview on 17 January 2022. Such indication was repeated on 14 February 2022 and 25 April 2022.

19.  On 25 July 2022, upon the refusal of the Applicant’s NRC in the Director’s Decision, the Applicant originally indicated his willingness to return to India during a phone interview. Such indication was repeated on 3, 19 & 26 August 2022, 14 September 2022 and 5 October 2022. The IND CG had indicated that emergency travel document can be issued within 2-3 weeks upon completion of re-entry formalities and an in-person interview.

20.  However, before the re-entry formalities could be finalised, the Applicant changed his mind subsequently and indicated on 19 October 2022, 4 November 2022, 9 December 2022, 9 January 2023, 10 February 2023, 3 March 2023, 14 April 2023, 14 July 2023, 23 August 2023, 5 October 2023, 24 October 2023, 1 November 2023 and 9 November 2023, that he was unwilling to return to India. During this time the Applicant had refused to co-operate with re-entry formalities.

21.  The Immigration Department then sought assistance from the IND CG for possible alternative means to issue a travel document regardless of the Applicant’s refusal in co-operating with re-entry formalities on 19 January 2023. Such requests were repeated on 18 April 2023, 22 May 2023, 1 June 2023, 26 July 2023, 22 August 2023, 29 September 2023 and 25 October 2023.

22.  The Applicant had refused to attend an arranged interview between him and the IND CG on 26 October 2023. As a result, the interview was called-off.

23.  Despite the repeated enquires for alternative means for the issue of a replacement travel document, the IND CG insisted that a completed application form, photo and in-person interview at the IND CG are essential criteria before a replacement travel document can be issued.

24.  The Immigration Department had requested on 3 November 2023 for the Applicant’s JR Application to be accorded priority. The hearing for the JR Application took place on 29 November 2023 and was adjourned to 17 January 2024 pursuant to the legal aid stay. The Applicant’s application for legal aid was rejected on 1 December 2023.

25.  The Director indicated that in view of the failure of the Applicant to obtain legal aid, he would seek to bring forward the hearing date by writing to the court with an update of the situation. This was acceded to by the court and the hearing for the JR Application has now been brought forward to 11 December 2023.

F.  Applicable Principles

26.  In the Court of Appeal’s Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security And Another [2022] HKCA 781, the principles to be applied in an application for habeas corpus were set out in summary in §164.

27.  In considering the present application, I have adopted the said principles and have borne in mind that (1) the burden is on the Director to justify the continued lawfulness of the detention, and (2) the weight to be given to individual factors in the balancing exercise may, depending on the circumstances of the particular case, vary considerably as the period of detention lengthens.

G.  The Applicant’s Submissions

28.  The Applicant has set out his grounds for application in his affirmation filed on 12 October 2023. In summary, they are as follows:

(1)  The length of the detention since 28 December 2021 has become unreasonably long.

(2)  His removal cannot be effected in the near future.

(3)  He has applied for judicial review for the rejection of his NRC.

(4)  The purpose of detention was not for removal. The power of detention cannot be used for the protection of public safety.

(5)  He has already served his sentence for his past convictions.

29.  The Applicant relies on various quotes from the Administrative Law volume of the Halsbury’s Laws of Hong Kong as well as certain habeas corpus cases.

30.  At the oral hearing, the Applicant made further oral submissions:

(1)  He wished to be granted bail so he could give instructions to his legal aid lawyers in the JR Application.

(2)  He is remorseful of the offences he committee and that he had absconded multiple times.

31.  I shall bear these points in mind as appropriate in my analysis below.

H.  Lawful Authority for Detention?

32.  At all times, the Applicant was detained under various sections of the Ordinance:

(1)  From 28 December 2021 to 2 June 2022 (157 days), the Applicant was detained under section 32(3A) of the Immigration Ordinance (Cap. 115) (the “Ordinance”), which authorises the detention of a person against whom a removal order is in force pending his removal from Hong Kong. The Removal Order remains extant.

(2)  From 3 June 2022 to 4 August 2022 (63 days), the Applicant was detained under section 37ZK of the Ordinance pending final determination of his torture claim.

(3)  From 5 August 2022 to 13 September 2022 (40 days), the Applicant was detained under section 32(3A) of the Ordinance pending removal from Hong Kong pursuant to the Removal Order.

(4)  From 14 September 2022 to 26 September 2022 (13 days), the Applicant was detained under section 29(1) of the Ordinance pending inquiry as to whether a deportation order ought to be made against him.

(5)  From 27 September 2022 to 4 December 2023 (434 days), the Applicant was detained under section 32(3) of the Ordinance pending removal from Hong Kong pursuant to the Deportation Order.

33.  Thus, there was and remains clear prima facie lawful authority for the detention.

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

I.  Whether Detention has become unlawful

35.  The assessment of whether an originally lawful detention has ceased to be lawful due to its continuation for an unreasonable period will be made in line with the “Hardial Singh principles”:

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

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

(3)  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 (“HS3”);

(4)  The Secretary/Director should act with reasonable diligence and expedition to effect removal (“HS4”).

36.  The burden of demonstrating the detention (and the continuation of it) is lawful rests on the respondents to the application for habeas corpus.

HS1

37.  I am satisfied that the Director has detained the Applicant for the sole purpose of removal or deportation throughout the detention period. HS1 is satisfied.

HS2 & HS3

38.  The starting point is the length of the detention – about 707 days – against which all the other factors must be weighed and balanced.

39.  For the following reasons, despite the length of the detention, I am satisfied that HS2 and HS3 are satisfied:

(1)  From the history of the Applicant’s Asylum Claim/CAT Claim/NRC, one could see that he had failed to pursue his claims diligently:

i)  He had failed to appeal against the refusal of his Asylum Claim in 2006 such that it was considered closed in 2007.

ii)  His CAT Claim was likewise considered closed in 2013, 6.5 years after it was lodged in 2006 due to his failure to return a torture claim form.

iii)  His NRC was only lodged in 2013, 8 years after he first arrived in Hong Kong and 6 years after his Asylum Claim was considered closed.

iv)  Further, after his NRC was rejected in 2022, he did not lodge an appeal against the Director’s Decision until more than 1 year after it was handed down.

v)  He had also failed to commence the JR Application against the TCAB Decision until 2 months afterwards.

As such, I am of the view that the Applicant clearly is not serious in pursuing his NRC.

(2)  Further, I consider the Applicant’s course of conduct as a delaying tactic on his part to make use of the Immigration Department removal policy to create a legal impediment for his removal:

i)  On 25 April 2022, whilst in detention pending his removal from Hong Kong, the Applicant sought to “reopen” his torture claim that had been deemed withdrawn 4 years earlier. This was 3 months after he was informed on 17 January 2022 (upon his release from prison) that there was no outstanding NRC and that there was no longer any legal impediment to his removal.

ii)  The Applicant did not promptly lodge an appeal against the Director’s Decision upon the refusal of the NRC on 19 July 2022. Instead, he indicated he wished to return to India between July – October 2022.

iii)  The Applicant changed his stance from mid-October 2022 and remained uncooperative with re-entry formalities.

iv)  The Applicant only lodged his appeal against the Director’s Decision on 24 July 2023, one year after it was handed down.

v)  The Applicant only lodged the JR Application 2 months on 25 October 2023 after the TCAB Decision which was handed down on 17 August 2023.

vi)  The hearing for the JR Application already took place on 29 November 2023 and was adjourned to 17 January 2024, due to the 42-day legal aid stay triggered by Applicant’s application for legal aid. The Legal Aid application was only taken out in late October 2023. The Applicant claimed to be unaware of the availability of legal aid until that time, even though he had intended to lodge a NRC as early as November 2013. I consider this to be a delaying tactic employed by the Applicant to take advantage of the usual legal aid stay and the Immigration Department policy for removal of persons with an outstanding NRC. The longer he could delay the process of his NRC at the Court of First Instance, the more likely the court would consider that his removal cannot be carried out within a reasonable time. However, the court will be very slow to endorse a course of conduct which is likely to facilitate abuse of this policy. I am of the view that the Applicant’s conduct which led to the present circumstances of the case, which was engineered by the Applicant, should not be endorsed.

In such circumstances, I place little weight on the fact that the determination of the JR Application is pending. The Applicant should not be allowed to take advantage of the fact that the JR Application is outstanding, when he contributed to the delay that it took for the Court of First Instance to determine the matter.

(3)  In any event, a preliminary assessment of the JR Application does not review any strong merit. There is also nothing to indicate that the judgment of the JR Application would not be available within a reasonable time after the hearing, which has now been brought forward to 11 December 2023.

(4)  There is no dispute that between January – April 2022, and between October 2022 to present (a total period of 16 months), the Applicant has refused to co-operate in obtaining a valid travel document to enter India.

(5)  The period during which the Applicant refused to co-operate with the re-entry formalities and of his deliberate attempt to delay the processing of his NRC should be seen as a delayed period of detention which was inflicted by his action alone. The conscious and deliberate refusal to cooperate led to the impossibility of deportation. The Applicant should not be allowed to rely on self-imposed obstacles in arguing that the detention has become unreasonably long. This is a significant factor that has been taken into account.

(6)  It has been confirmed by the IND CG that if the Applicant were co-operative in completing the re-entry formalities, the travel document can be issued in about one month’s time. I am satisfied that there is sufficient prospect of removal within a reasonable timescale. The Applicant should not be allowed to rely on a period of detention caused by his refusal to co-operate to assert that removal cannot be effected within a reasonable time.

(7)  Ms Kao has indicated at the hearing that the IND CG had in the past issued emergency travel documents to applicants which had remained un-cooperative with re-entry requirements. It is thus not the case that the issue of emergency travel document is impossible without the co-operation of the Applicant and the period of detention would thereby become indefinite.

(8)  The risk of re-offending is real. The Applicant had repeatedly committed serious offences, not least whilst on recognizance. It is thus not unreasonable to guard against the risk that the Applicant, if released on recognizance, might engage in serious offences again which would lead to terms of imprisonment which might delay further repatriation operation, because some of the offences that had been committed by the Applicant in the past had attracted an imprisonment term of 15 or more months.

(9)  Given the Applicant’s clear attitude that he will refuse to co-operate in obtaining the necessary travel documents as he is unwilling to be repatriated, the risk of absconding is also real. The past record of abscondences also strongly indicates a high likelihood of abscondence. The Applicant clearly paid no heed to his obligations whilst on recognizance. He admitted to have forgotten how many times he had absconded in the past. The risk of abscondence is of critical importance in assessing the lawfulness of the detention. If the Applicant absconds again, it would defeat the primary purpose for which the power to detain has been conferred and for which the detention order was made.

(10)  The Applicant has no local connection. No fixed place of abode has been provided by the Applicant. This adds to the risk of abscondence.

(11)  Overall, weighing the period of detention – around 707 days (but at least 540 days of which were self-inflicted by the Applicant’s refusal to co-operate with removal formalities) – against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

40.  I am satisfied that HS4 is satisfied for the following reasons:

(1)  The Director had requested the assistance of the IND CG from April 2021 onwards, prior to the Applicant’s present detention.

(2)  The Applicant was originally willing to return to India in July 2022, and the Director had no reason to expect the Applicant to have a change of mind shortly afterwards.

(3)  Upon the Applicant’s change in his attitude in October 2022 and his persistent refusal to co-operate, the Director had, in January 2023 sought the assistance of the IND CG to issue the Applicant with a travel document. Such request was renewed on a monthly basis from then until November 2023.

(4)  The Deportation order was issued against the Applicant on 26 September 2022.

(5)  The Director had proactively asked the Court to expedite the Applicant’s application for leave to commence judicial review (which was one of the obstacles in removing the Applicant).

(6)  The Director had written to the court to seek assistance in bringing forward the hearing for the JR Application before 17 January 2024. The request has been acceded to, with the hearing now scheduled for 11 December 2023.

(7)  I am thus of the view that the Director had diligently pursued the Applicant’s deportation.

41.  Based on the above, I am of the view that the period of detention to date has remained lawful at all times and will remain lawful for the foreseeable future.

J.  Result

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