MOHAMMAD FALEEL ASADHORE v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 2301/2023

[2024] HKCFI 446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2301 OF 2023

________________________

________________

___________________

J U D G M E N T

___________________

A.  Application

1.  By an ex parte application filed on 20 December 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.

B.  Background of Applicant

2.  The Applicant is a Sri Lankan national who arrived in Hong Kong on the strength of his passport on 28 April 2001 under the identity of “Mohammed Faleel Asadhore” with the birth date of 13 April 1978 (“ID1”).

3.  The Applicant was thereafter released on recognizance. He was subsequently convicted on 23 October 2001 of the offences of “possession of an identity card relating to another person” and “breach of condition of stay”, and was sentenced to a total of 15 months’ imprisonment.

4.  On 29 January 2002, the Immigration Department (“Department”) sent a letter to the Honorary Consul of the Democratic Socialist Republic of Sri Lanka in Hong Kong (the “Sri Lankan Consul”) requesting the issuance of a replacement travel document to the Applicant.

5.  On 10 June 2002, a deportation order was issued against the Applicant (under ID1) (the “Deportation Order”) which remains valid.

6.  The Sri Lankan Consul informed the Department on 13 June 2002 that the application for the issuance of the Applicant’s replacement travel document was approved.

7.  The Applicant was removed to Sri Lanka under the Deportation Order on 15 July 2002.

8.  On 21 July 2005, the Applicant came to Hong Kong again as a visitor on the strength of a Sri Lankan passport under the identity of “Archchege Thewankac Chandrasoma Mapetegma” with the birth date of 30 September 1980 (“ID2”).

9.  The Applicant’s passport under ID1 had expired in September 2002 whilst his passport under ID2 was claimed to have been lost on 26 July 2005.

10.  The Applicant has no family ties and local connections in Hong Kong.

11.  On 17 August 2022, the Applicant was discharged from prison after having served the latest sentence of his crime and was transferred to the Castle Peak Bay Immigration Centre for detention under section 32(3) of the Ordinance, pending his removal from Hong Kong under the Deportation Order.

12.  At the time of the hearing, the Applicant has been detained for 538 days.

C.  NRC related proceedings

13.  The Applicant first lodged his non-refoulement claim (the “NRC”) on 31 January 2013. The Director of Immigration (the “Director”) rejected the Applicant’s NRC on 17 November 2017 by a notice of decision (the “Director’s Decision”). The Applicant’s appeal to the Torture Claims Appeal Board against the Director’s Decision was dismissed on 20 August 2018 (the “TCAB Decision”).

14.  The Applicant’s application to the Court of First Instance for leave to apply for judicial review against the TCAB Decision (the “JR Application”) was dismissed by the Form CALL-1 in HCAL 2061/2018 dated 5 January 2022.

15.  According to the updated removal policy of the Department since 7 December 2022, 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.

16.  There is thus no legal impediment to the Applicant’s removal due to any outstanding NRC related proceedings.

D.  Criminal Record & Sentencing Record & Record of Abscondence

17.  Whilst the Applicant was released on recognizance, the Applicant had repeatedly been arrested and subsequently been convicted of the following criminal offences:

Date of Sentence	Offence	Sentence/Period of Imprisonment
23 October 2001	possession of an identity card relating to another person and breach of condition of stay	15 months
19 September 2006	breach of deportation order	8 months
18 April 2008	theft	2 months
22 August 2012	theft (shoplifting)	2 months
19 November 2012	theft (shoplifting)	2 months
13 November 2014	theft (shoplifting)	2 months
30 March 2016	theft (shoplifting)	3 months
14 April 2016	theft (shoplifting)	3 months
23 January 2018	2 counts of theft (shoplifting)	5 months
28 June 2022	2 counts of theft (shoplifting)	5 months

18.  On 26 October 2018, the Applicant was released on recognizance. Since 25 October 2019, the Applicant had failed to report recognizance for nearly 4 months until he was arrested by the Police on 5 March 2020 for being a wanted person.

19.  The Applicant had also jumped court bail in the following periods:

1)  from 15 November 2017 to 3 January 2018;

2)  from 9 April 2021 to 30 June 2021;

3)  from 30 July 2021 to 14 May 2022.

E.  Steps towards Removal

20.  During all the 13 interviews conducted with the Applicant during his detention between 29 September 2022 and 10 January 2024, not only did he express unwillingness to return to his home country or attend any interview for travel document application, he also refused to cooperate with the re-entry seeking formalities, including the completion of a re-entry application forms and photo-taking.

21.  There is no dispute that the only practical obstacle to removal is the need to obtain a travel document to replace the Applicant’s expired passport. The Department had tried to request the Sri Lankan Consul for assistance with the issue of a replacement travel document by letter dated 10 January 2023 but it turned out that the Sri Lankan Consul had ceased operation on 1 March 2023.

22.  The Department then followed up with the Embassy of the Democratic Socialist Republic of Sri Lanka in Beijing (“SL Embassy”) on 19 April 2023, seeking alternative means for the issuance of a travel document for the Applicant.

23.  The Department sought the assistance of the SL Embassy on 24 May 2023, 15 June 2023, 30 June 2023, 26 July 2023, and 16 August 2023 for verification of the Applicant’s identity and for the issuance of emergency travel document for the Applicant’s removal to Sri Lanka.

24.  On 5 October 2023, the SL Embassy replied by email that new updates of the Applicant and a declaration form needs to be completed by the Applicant for the issuance of a temporary travel document.

25.  The Applicant remained un-cooperative in the completion of the application form. The Department thus sent a letter and an email on 13 October 2023 to the SL Embassy seeking possible alternative means to issue a travel document to the Applicant or to confirm his re-entry to Sri Lanka.

26.  The Department sent another chaser to the SL Embassy again on 16 October 2023 and 6 December 2023 requesting for the issuance of the necessary travel document.

27.  The Applicant eventually agreed to fill in the forms on 29 January 2024. According to the SL Embassy, all re-entry applications have to be sent to Colombo, Sri Lanka for processing. The court was informed that it is anticipated that a reply from Colombo, Sri Lanka is likely to be received before end of February 2024. Generally speaking, an emergency travel document could be issued by the SL Embassy in about 2 to 3 weeks upon receiving the confirmation from Colombo, Sri Lanka.

28.  It can thus be seen that the Department has all along taken a proactive stance in effecting the Applicant’s removal, and the major reason why the Applicant cannot be deported is his refusal to co-operate.

F.  Applicable Principles

29.  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.

30.  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

31.  The Applicant has set out his grounds for application in his affirmation filed on 20 December 2023. In summary, they are as follows:

(1)  The Applicant submitted that he cannot be removed within a reasonable time.

(2)  The initial lawful detention has become unlawful.

(3)  His NRC is ongoing.

(4)  He is remorseful of what he had done in the past.

(5)  The risk of re-offending does not warrant detention.

(6)  He promised not to abscond or to commit any crime in future.

(7)  He can provide an address and a surety, who is a permanent Hong Kong resident.

(8)  He has health issues in relation to his kidney stone.

(9)  There is no privacy in the Tai Tam Correctional Institution.

32.  The Applicant has in addition made the following oral submissions at the hearing:

(1)  The Department has never asked him to fill in any application forms for the issue of his travel document.

33.  I have borne these points in mind as appropriate in my analysis below.

H.  Lawful Authority for Detention?

34.  The Deportation Order was issued on 10 June 2002 and remains valid.

35.  From the commencement of his detention, the Applicant was detained under section 32(3) of the Ordinance pending his removal from Hong Kong pursuant to the Deportation Order.

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

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

I.  Whether Detention has become unlawful

38.  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”).

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

HS1

40.  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

41.  The starting point is the length of the detention – about 538 days – against which all the other factors must be weighed and balanced.

42.  For the following reasons, I am satisfied that HS2 and HS3 are satisfied:

(1)  Contrary to the Applicant’s claim, he does not seem to have any outstanding NRC application. In any event, pursuant to the updated removal policy, after the Applicant’s JR application was dismissed on 5 January 2022, there is no longer any legal impediment to the Applicant’s removal due to his NRC.

(2)  The Applicant had since the commencement of his detention been un-cooperative in complying with re-entry formalities until 29 January 2024 when he finally filled in the forms.

(3)  Contrary to the Applicant’s assertion that he was never asked to fill in any application form before 29 January 2024, various internal minutes of the Department had recorded the Applicant’s refusal to fill them in on multiple occasions.

(4)  The Applicant in any event admitted that he had all along refused to go back to Sri Lanka.

(5)  Subject to the issue of the replacement travel document, there is no further obstacle to the Applicant’s repatriation, hence release from detention.

(6)  In Johnson Benjamin v Director of Immigration & Secretary for Security[1], the Court of Appeal held that:

“In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee’s own unreasonable behaviours or conducts should not be counted or regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are other circumstances to show otherwise. This is so, as if otherwise, it would result in an absurd situation where the more unreasonably and uncooperatively a detainee behaves in seeking to frustrate or delay the procedures or process necessary to prepare for his removal, the more likely he is to be released. That cannot be the intention of the Hardial Singh principles.”

(7)  The period of detention that the Applicant has prolonged by his refusal to co-operate will thus not be counted as unreasonable when determining whether an originally lawful detention has become unlawful. I am of the view that such period in the present case would be the majority of the period of detention as the Applicant has since the commencement of the detention been acting unreasonably. If he had co-operated with removal when his detention first commenced, the re-issue of a travel document and earlier removal might have been possible before the closure of the Sri Lankan Consul in March 2023.

(8)  The risk of re-offending is high in view of the Applicant’s conviction record.

(9)  Although the Applicant has provided a local connection, the connection is not a strong one as it is not a family connection. Given the Applicant’s clear attitude that he is unwilling to be repatriated and there is no further legal impediment to his removal, the risk of absconding is real.

(10)  It has been indicated that it would take about 2 months for the authorities in Colombo and the SL Embassy in Beijing to process the application for a travel document. It is thus foreseeable that the Applicant will be released within a reasonable time.

(11)  Overall, taking into account all the relevant factors, I am satisfied that HS2 and HS3 are met.

HS4

43.  In view of the steps that had been taken by the Director as set out in paragraphs 20 – 28 above, I am of the view that the Director had diligently pursued the Applicant’s removal and I am satisfied that HS4 is satisfied.

44.  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

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