ADJEI ROBERT v. DIRECTOR OF IMMIGRATION

HCAL76/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 76 OF 2012

_______________

______________

J U D G M E N T

______________

1.  This is an application for a writ of habeas corpus.

2.  The applicant is a Ghanaian national.  He first came to Hong Kong in November 2003 as a visitor.  After his visitor’s visa had expired, he overstayed in Hong Kong.

3.  On 12 February 2004, the applicant applied to the Office of the United Nations High Commissioner for Refugees in Hong Kong for refugee status.  But his application was already closed on 4 May 2005.  That application has no bearing on the present application.

4.  On 10 July 2005, he was arrested for overstaying in Hong Kong.  On 13 July 2005, he was detained under section 32(2A) of the Immigration Ordinance, Cap 115 (“the Ordinance”) pending the decision whether a removal order should be made against him.  On 23 July 2005, he was convicted on his own plea for breach of condition of stay and was sentenced to 3 week’s imprisonment suspended for 3 years.  On 31 August 2005, he was released on recognizance, subject to reporting conditions and guarantor surety. (Between 13 July and 31 August 2005, he was detained but his detention is immaterial to the present application.)

5.  On 26 November 2009, the applicant was married to a Hong Kong resident.  Then on 4 December 2009, he applied for a change of status as a dependent to join his spouse in Hong Kong.  However, on 15 December 2009, his wife withdrew her sponsorship for the applicant’s dependent visa application for personal reasons.

6.  On 22 July 2005, the applicant made a claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment.  His claim under the Convention was refused by the Director on 28 February 2012.  On 23 April 2012, the applicant requested to re-open his torture claim, which was refused by the Director on 2 May 2012.  The applicant then filed a petition which was refused by the Adjudicator on 5 June 2012.

7.  While his torture claim was being processed, the Director issued a removal order against him on 23 March 2012 under section 32(3A) of the Ordinance.  He has since been detained.  On 12 April 2012, after reviewing the applicant’s detention, the Director decided that the continuance of the applicant’s recognizance was not recommended on the ground that he might be removed within a reasonable time.  The applicant’s appeal against the removal order was dismissed on 4 May 2012.  The applicant’s detention was further reviewed in June and July 2012 with the same result that he was to be remanded in custody.

8.  In the meantime, the Director made arrangements for removing the applicant back to Ghana.  But the applicant refused to disclose the whereabouts of his wife or his passport.  Funding for procurement of flight ticket for the repatriation of the applicant to Ghana was earlier approved on 19 April 2012.  On 25 June 2012, the Consulate of Ghana confirmed that the replacement travel document for the applicant is now ready.  On the very same day, the applicant took out the present application.

9.  A writ of habeas corpus is a remedy for persons who have been wrongfully deprived of their personal liberty.  The fundamental question that I have to determine is whether the applicant has been wrongfully detained by the Director since 23 March 2012.  As Stock J (as he then was) put it in Fidelis AQhuwaraezeama Emem v Superintendent of Victoria Prison [1988] 2 HKLRD 488 at p 453C-D and p 455A-B :

“Now the purpose of an application for habeas corpus is to determine whether there is lawful authority for a detention. It is not to determine the reasonableness of any decision or whether there has been some failure to observe the rules of natural justice. Those are matters properly within the realm of judicial review.

…

I am here to exam the legality of the detention and that is all.  Once it is shown that the underlying facts for the exercise of powers existed, then that is the end of the matter.”

10.  In my view, there can be no doubt whatsoever that the applicant’s initial detention in March 2012 is lawful.  The Director has acted under the statutory authority conferred upon him by section 32(3A) of the Ordinance.

11.  I next consider if the applicant’s detention has been for a period so unreasonably long as to render it unlawful.  See A (Torture Claimant) v Director of Immigration [2008] 4 HKLRD 752.  It is well‑established that so long as the Director intends to remove an applicant at earliest possible moment and it is not apparent to him that removal within a reasonable time would be impossible, the power to detain is exercisable.  This proposition applies here with full force.  The applicant was first detained on 23 March 2012.  The Director immediately took steps to remove him to Ghana.  Removal can surely take place within a reasonable time.  In fact, Ms Parwani, for the Director, told me that flight arrangement has already been made to remove the applicant on 26 July 2012.

12.  In support of the present application, the applicant effectively sought to challenge the Director’s decision to reject his torture claim.  He argued that it was wrong for the Director to assess his claim based on the information that he provided in 2005.  But the truth is that the applicant had been asked to return the questionnaire served on him on 25 October 2011.  He was then legally assisted by the Duty Lawyer Service (“DLS”).  However, he did not return the questionnaire or ask for any extension of time to do so as required by the questionnaire.  What followed was some correspondence between the Director and DLS in which DLS indicated that they had difficulty to contact the applicant.  By letter dated 17 January 2012, DLS advised the Director that they were still unable to contact the applicant to settle the questionnaire and asked for an extension.  The Director informed DLS on 27 January 2012 that he decided to proceed with the assessment based on the then available information.  By letter dated 1 February 2012, DLS said that they had no instructions from the applicant in respect of the questionnaire.  The Director then made the assessment.

13.  The applicant is undoubtedly fully aware of the consequences of not providing the questionnaire.  The Director was perfectly entitled to assess his application based on the information then available.  It does not now lie in the applicant’s mouth to complain that the Director only assessed his application without reference to the questionnaire, which he had failed to provide.

14.  The applicant next complained that the Director has failed to take into account his records of interview between 5 August 2005 and 19 August 2008.  But they relate to the correctness of the Director in assessing his torture claim and not the legality of the decision to detain him pending removal.  In any event, those arguments had been raised by him in his petition, which were rejected by the Adjudicator in her decision dated 5 June 2012.

15.  The applicant then contended that his dependent visa application had been refused without being informed of the reason.  But the dependent visa application was refused after his wife had withdrawn her sponsorship on 15 December 2009.  In any event, the rejection of his application purportedly without reason is irrelevant to the legality of his detention.

16.  The applicant also complained that no interpreter assisted him.  But at all material times he was legally assisted by DLS.  This is a complaint with no substance at all.

17.  In his oral submissions, the applicant made three further points.  He first said that his brother’s solicitor is applying for judicial review on his behalf against the Director’s rejection of his torture claim.  However, when further questioned, he said he could not be sure if such an application has in fact been taken out.  Ms Parwani said the Director has no such information either.  In the circumstances, I will not take that into account.  The applicant next said that he wanted to visit his son, who is 5 and is staying with his wife.  But his wish is simply immaterial to the legality or otherwise of his detention.  Finally, the applicant referred to his application to the United Nations High Commissioner for Refugees in Hong Kong for refugee status.  But as noted, that application had already been closed in May 2005.

18.  Having considered all the evidence and submissions with care, I am of the view that the Director has acted lawfully in detaining the applicant since 23 March 2012 under section 32(3A) of the Ordinance pending his removal to Ghana.  The applicant has not been deprived of his liberty wrongfully as alleged.  His application for habeas corpus is therefore refused.