JOOF, SAIHOU v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 878/2023

[2023] HKCFI 1621

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 878 OF 2023

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D E C I S I O N

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A. Introduction

1.  The Applicant has been held in immigration detention under the immigration Ordinance Cap 115 (“Ordinance”)  since 17 November 2022, pending his removal from Hong Kong.  To the date of this hearing, the period of detention has lasted 216 days, or little over 7 months (albeit that includes an intervening 7-day period when he was under quarantine in an isolation facility).

2.  On 6 June 2023, the Applicant applied for writ of habeas corpus on the basis that his continued detention has become unlawful by reference to the Hardial Singh principles. On the same day, I gave leave for the Respondents to file a written response and the necessary directions to bring the matter to today’s hearing.  The Respondents were represented by Ms Augusta Wong, Government Counsel from the Department of Justice (“DoJ”), who also signed the written response.  The Applicant appeared in person.

3.  This is my Decision.

B.  Factual Background leading to the Present Detention

4.  The Applicant is a Gambian national born in 1988.  He first entered Hong Kong in December 2014 as a visitor and was permitted to stay for 10 days. But he did not the depart within the limit of stay granted to him and has since been overstaying in Hong Kong.  He surrendered to authorities in January 2015.

5.  A removal order was issued against him on 9 November 2015.  But that removal order was not executed because by then the Applicant had already lodged a non-refoulement claim (“NRC”).  Under the then removal policy adopted by the Government, the NRC was an impediment which must be satisfactorily dealt with before an illegal immigrant could be removed from Hong Kong.

6.  The NRC, lodged in February 2015, was processed under the what has now come to be known as the “Unified Screening Mechanism” (“USM”).  The USM is a two-tier administrative mechanism to deal with NRCs.  In February 2018, the Applicant’s NRC on all applicable grounds was rejected by the Director. The Applicant then appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”).  In June 2021, the Board dismissed the appeal.

7.  There then came a period of nearly 2 years where there were no NRC related obstacles because the Applicant did not seek to challenge the Board’s decision in Court by way of judicial review until the 30 March 2023.  Of course, I do not lose sight of the fact that the Applicant was in prison or detention in that period – see below – but he was able to launch the intended judicial review from detention.

8.  By then, execution of the removal order was impossible because another removal obstacle had already emerged in January 2019, when the Applicant’s Gambian passport expired.  I am informed by the Director that the Director has been liaising with the Gambian Embassy for the purpose of obtaining a replacement passport, but to no avail so far.

9.  During his stay in Hong Kong, the Applicant was initially released on immigration recognizance.  But such liberty was brought to an end when he was arrested for trafficking in a dangerous drug in October 2015.  He was subsequently convicted of the offence and sentenced to 10 years and 8 months’ imprisonment.  He completed his term of imprisonment on 17 November 2022.  On the same date, the Director revoked the immigration recognizance granted to him, thus commencing the present period of immigration detention.

10.  It can be noted that, after the Applicant has been taken into immigration detention, a Deportation Order was also issued against him on 3 March 2023.

C.  Obstacles to Removal

11.  As stated, and as is usual in habeas corpus applications lodged by non-refoulement claimants, the obstacles standing in the way of the Applicant’s removal have been the on-going NRC related legal proceedings, and the need to replace his expired passport.  I can give more detail as follows.

C1.  Judicial review leave application

12.  As said, the Applicant applied for leave to challenge the Board’s decision by way of judicial review on the 30 March 2023.  As the chronology indicates, the application was only made more than four months after the Applicant had been taken into immigration detention, and was about 18 months out of time.  As well as being out of time, the Form 86 does not put forward any proposed grounds of review.

13.  Apparently the Applicant has applied for legal aid for his judicial review application.  By letter dated 19 April 2023, in response to the Director of Legal Aid’s request, the Director provided a copy of its own decision made in February 2018 rejecting the Applicant’s NRC.

14.  By letter dated 21 April 2023, the DoJ, on behalf of the Director, informed the Court that the Applicant is currently under immigration detention and requested priority to be accorded to this case.

15.  By letter dated 22 May 2023, the Court requested the Director’s assistance in providing the latest address of the Applicant because the address he provided was incomplete or uncertain.  By letter dated 24 May 2023, the Director informed the Court that the Applicant was currently detained in Tai Tam Gap Correctional Institution.

16.  By letter of the same date, the Court informed the Director that the decision for the Applicant’s leave application will be ready for handing down as soon as possible or in mid-August 2023.

C2.  Replacement passport

17.  The Director’s efforts to procure a replacement passport for the Applicant began even before the present period of detention had commenced.

18.  From the materials available to me, for the Gambian Embassy (in Beijing)  to issue a replacement passport, the procedural steps or the formalities are as follow.  First, the Embassy has to confirm that the Applicant is a Gambian national and his identity.  Then, the Applicant has to submit a duly completed application form.  Lastly, an itinerary for his departure has to be provided.  Apparently at least the first two steps will require the cooperation of the Applicant.

19.  From the information and materials provided to me by the Director, it appears that only the first step has been completed so far and the Applicant has refused to cooperate in submitting a duly completed application form.

20.  The liaison between the Director and the Embassy is as follows.

21.  By letter dated 20 June 2023, the Director informed the Embassy that it was the former’s intention to deport the Applicant in view of his criminal record and requested the Embassy to issue him the necessary travel document for his home passage and to confirm his re-entry to Gambia in writing.

22.  After the Applicant had been taken into immigration detention, the Director, by letter dated 6 December 2022, updated the Embassy as to the situation and reiterated the request for a replacement travel document and the confirmation of the Applicant’s re-entry to Gambia.

23.  Apparently the Gambian Embassy had then conducted a telephone interview with the Applicant for the purpose of confirming his identity.  By letter dated 9 December 2022, the Embassy confirmed that the Applicant is a Gambian national.

24.  A chaser letter was issued by the Director to the Embassy on 20 March 2023.

25.  By letter dated 2 May 2023, the Director informed the Embassy that the Applicant has remained uncooperative and had refused to complete the re-entry formalities (which I take as a reference to completing the application form).  The Director asked for alternative means to issue a replacement travel document in the light of the Applicant’s uncooperative attitude.

26.  On 9 June 2023, the Director made contact with the Embassy over the phone.  It was recorded in the Director’s internal communication that the Embassy was well aware of the Applicant’s uncooperativeness and requested to speak with him on 12 June 2023.

27.  Apparently, the phone interview scheduled on 12 June 2023 did take place.  After the interview, the Embassy emailed the Director on the same day, stating that “The Embassy cannot do more to help as he is not cooperating to be sent to Gambia”.

28.  By email dated 13 June 2023, the Director informed the Embassy that the Deportation Order was issued against the Applicant.  The Director urged the Embassy to enlighten as to any alternative means to issue a replacement travel document in view of the Applicant’s uncooperativeness.

29.  I understand the Director has been conducting various phone interviews in the process to ascertain the Applicant’s willingness to return to his home country.  Three such interviews were conducted in April and May 2023, and Applicant has consistently expressed unwillingness to return.

30.  I note that as regards a Notice of Review of Detention under section 32 of the Ordinance, provided to the Applicant on 19 June 2023 (yesterday), the outcome of the review was to refuse release on recognizance, including for the reason that the Applicant had directly or indirectly prevented or delayed his removal by his own action or lack of action.  The relevant ticked box was supplemented with the following comment:

You expressed your unwillingness to return to Gambia.  You refuse to complete the re-entry application form and conduct the interview with the Embassy of the Republic of the Gambia in Beijing during interviews conducted on 22 March 2023, 11 April 2023 and 19 April 2023.  During a phone interview conducted by the Embassy on 12 June 2023, you maintained your uncooperativeness to return to your home country.

31.  I note that the papers provided to me include an email from the Embassy to an immigration officer dated 12 June 2023 stating that the Applicant “is not willing to be deported back to Gambia.  The Embassy cannot do more to help as he is not cooperating to be sent to Gambia”. Nevertheless, as will be seen below, the Applicant disputes the fact of his non-cooperation.

32.  I am informed by Ms Wong that the Director anticipated that travel document would be issued to the Applicant within a reasonable time, subject only to the Applicant’s completion of the re-entry seeking formalities as stipulated by the Embassy.

D.  Applicable Principles

33.  In its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781, the Court of Appeal addressed the principles to be applied in a case such as the present.  The case can be read for its full reasoning and explication of the correct approach, but at §164 the Court offered a summary of the principles which should be adopted and which can be applied as appropriate to the particular circumstances of this case.

E.  The Applicant’s Submissions

34.  Exhibited to the Applicant’s supporting affirmation is a set of written submissions.  Attempts were made to make submissions by reference to the 4 Hardial Singh principles, although the Applicant did not always make clear to which one of the principles he was referring.

35.  In my summary of the Applicant’s submissions, they were:

(1)  It is unlikely that the Director and the Secretary intend to deport him when they are fully aware that he has commenced the judicial review, which poses as an obstacle to deportation. HS1 is not satisfied.

(2)  The Applicant has been detained for (at that time)  202 days which is a very long period.  The impact of detention on the Applicant’s high.  He has endured sleepless nights and is in constant worry due to the condition he finds himself in.  HS2 is not satisfied.

(3)  There is an obstacle to his removal and the Director could not say when or how removal can be effected.  After the institution of the judicial review application, it has become apparent that the Director will not be able to remove him within a reasonable time.  HS3 is not satisfied.

(4)  Apart from writing to the Court to ask for priority for the Applicant’s case, the Director and the Secretary have done nothing to expedite the Applicant’s removal.  HS4 is not satisfied.

(5)  His liberty is a fundamental human right which is protected by the Article 41 of the Basic Law.

(6)  It appears to him that he is now being punished a second time for his previous criminal conviction.

(7)  The Director has relied on the risk of reoffending and absconding as a reason to continue to detain the Applicant. Whilst he will not deny the fact that he was convicted of trafficking in a dangerous drug, he said he regrets that.  But he also said that guarding against the risk of reoffending is not the purpose of detention.

(8)  He said that he has no record of absconding or failing to report to immigration recognizance.  It is not certain that any such risk of absconding will materialize.

36.  At the oral hearing, the Applicant made various submissions which I would summarise as follows:

(1)  He needs to obtain some documents from the Gambia in support of his NRC, but whilst in detention he is unable to obtain them.

(2)  His application for leave to apply for judicial review is yet to be heard.

(3)  He is application for Legal Aid has been made in relation to those proceedings, and he is yet to hear the result of that application from the Legal Aid Department.

(4)  He stresses the length of time in which he has already been held in detention, and the effect that the hardship of detention has had on him.

(5)  He is in fact innocent of the drugs offence for which he served the long sentence.  As he put it, it was a ‘setup’.  But he “did not want to fight” and he pleaded guilty after a lengthy period on remand so as to avoid an even lengthier sentence if he were to plead not guilty but be convicted. 

(6)  He has not been uncooperative with attempts to obtain a replacement travel document, and he says that he has in fact been cooperating, including in his discussions with representatives from the Embassy.

(7)  In any event, he assures the Court that he would cooperate if asked to complete the necessary application forms and so forth, so that he could obtain a travel document in replacement of the one which expired in 2019.

(8)  The document which he refused to sign yesterday – which he originally said was in relation to a travel document, but which is in fact a Notice of Review of Detention under section 32 of the Ordnance – was not signed by him because it had someone else’s name in the signature box.  If he is given a document which has his name not just on the first page, but also on the last page, he would sign it.

37.  I specifically note that the Notice of Detention does indeed have the incorrect name in the box where the detainee should acknowledge receipt of the notice, and that the incorrect name has been crossed out and replaced in handwriting with the Applicant’s name, noting his refusal to sign.

38.  I also note the dispute as to whether or not the Applicant has cooperated in seeking to obtain a travel document, where the Applicant now asserts that he has been cooperating, may be of less relevance where the Applicant also now asserts that he will cooperate in future.

39.  I have taken the various submissions above into consideration, and will also mention them as is appropriate below.

F.  Whether Detention has become unlawful

40.  From 17 November 2022 to 14 December 2022, the Applicant was detained pursuant to section 32(3A), which authorizes the detention of a person in respect of whom a removal order is in force.  From 14 December 2022 to 21 December 2022, the Applicant was in quarantine.  Upon completion of quarantine, the Applicant was detained under section 32(3A)  again until 8 February 2023.  From 9 February 2023 to 3 March 2023, he was detained under section 29 for the purpose of making enquiry as to whether a deportation order should be issued.  Since the issuance of the Deportation Order on 3 March 2023, he has been detained pursuant to the authority granted by section 32(3)  which permits the detention of a person against whom a deportation order is in force.

41.  Thus, it could not be disputed that there was and remains clear prima facie lawful authority for the detention of the Applicant throughout the current detention period.  The question then arises whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

42.  The starting point is that the Applicant has been detained up to today for a period of 216 days, or a little over 7 months.  This is a substantial period of time, and it is against that period that the other factors are to be weighed and balanced, as other factors may vary in weight as the period of detention increases.

43.  I can address and apply the Hardial Singh principles broadly in turn, as follows.

44.  I accept that the Director has always been using the detention powers for the purpose of removal or deportation.  The fact that the Director has not yet been able to remove or deport the Applicant or that there remain removal obstacles to be cleared should not cast doubt on the Director’s intention to remove the Applicant.  Nor is the fact that the Applicant’s criminal record was taken into consideration in the decision not to release the Applicant.  HS1 is satisfied.

45.  I accept that the Director has been acting with reasonable diligence expedition in removing the Applicant, as evident in his active liaison with the Gambian Embassy for the purpose of seeking to obtain a replacement passport, and the steps he has taken to urge the Court to accord priority to the Applicant’s judicial review application.  HS4 is satisfied.

46.  I recognize that the detention period of 7 months is a substantial period.  But I also agree with Ms Wong’s submissions that it was partly the conscious choice of the Applicant which has unnecessarily prolonged the length of the present detention.  I am informed by the Director that normally the Gambian Embassy will be able to the issue a replacement passport within 2 to 3 weeks from the completion of the necessary formalities.  This means that a replacement passport could have been issued a long time ago had the Applicant chosen to cooperate in the application process.  Yet, on the face of the documents (including the correspondence issued by the Embassy)  he has refused to cooperate.

47.  Ms Wong submitted that the Applicant should not be entitled to relied on a self-imposed obstacle to argue that continued detention caused by such obstacle is unlawful or unreasonable.  She drew my attention to section 32(4A)  of the Ordinance, which permits taking into consideration whether a person’s removal is directly or indirectly prevented by his own action in assessing the reasonableness of the length of detention.  I find substantial force in her argument.

48.  In any event, whether the Applicant has or has not previously refused to cooperate, he says he would now cooperate in obtaining a replacement travel document.  As a result, on his assertion to this Court, the practical impediment to deportation arising from the lack of a travel document ought to be removed within a relatively short period.  If the Applicant does indeed cooperate as he says he will, it seems that a travel document should be obtained for him within one month or so.  The replacement travel document should have been obtained around the same time as or even in advance of obtaining the result of the judicial review application

49.  Of course, if the Applicant does not in fact cooperate, he will in effect have chosen to extend the period of that practical impediment.

50.  As for the judicial review application, it was filed one and a half years out of time.  The Form 86 (which was provided to me)  contains no proposed grounds of the review, nor offers any explanation for the delay.  It has little if any apparent merit on its face.  I have already noted that the Applicant was imprisoned at the time when the Board delivered its decision, but that on its own would not justify the delay.  It remained his duty to provide the Board with a valid corresponding address and to keep himself informed of the progress of his case.   The impression left is, therefore, that the application has been made at the time it was made, intending to create a further obstacle to removal.  In any event, the Court has now indicated that the judicial review application would be resolved as soon as possible or by mid-August 2023.

51.  In consequence, it would appear that both current impediment to removal will have gone by mid-August 2023.  (Of course, if the judicial review applications decided in favour of the Applicant, matters relating to continue detention can be revisited in light of that factor.)

52.  I also agree with Ms Wong that the risk of reoffending and absconding is real and substantial.  As Ms Wong submitted, within less than a year after his arrival in Hong Kong, and whilst released on recognizance, the Applicant committed the offence of trafficking in a dangerous drug, which is a serious offence as reflected in the heavy sentence imposed.  I acknowledge the Applicant’s statement that he has reflected on his behaviour, and would not commit crime in future.  But that does not seem to me to remove the risk, and the risk if it eventuates might be serious.  There is also a real risk that he may abscond given his repeated expressed unwillingness to return to Gambia, his apparent lack of cooperation to date as would allow removal, and his lack of local connection.

53.  I also take into account that the present immigration detention was immediately preceded by a lengthy prison term.  From the perspective of the Applicant, he has certainly been “imprisoned” for a long time (taking into account both the prison term and the current period of immigration detention).  But the prison term was caused by a criminal conviction which has not been overturned (despite the attempt on an appeal).  In the circumstances, I do not see fit to place any great weight on the prior prison term in assessing the overall reasonableness of the current immigration detention.  In that context, I give no weight to the Applicant’s assertion now that he was innocent of the charge, and I also note that his appeal – apparently against the sentence only – imposed was dismissed.

54.  Overall, weighing the period of immigration detention to date against all the factors and circumstances of this case, I am satisfied that the detention has remained and will remain or continue for a period which is lawful.  HS2 and HS3 are satisfied.

G.  Result

55.  For these reasons, I dismiss the Applicant’s application for a writ of habeas corpus.

56.  I make no order as to costs.

H.  Postscript

57.  Though I do not need to decide the matter in the context of this particular case, a point arises which seems to me to be one worthy of further comment.

58.  Cases may arise where –even if any impediment to removal caused by NRC related proceedings ceases – there will remain an impediment to removal because of the inability to obtain for the detainee a replacement or emergency travel document.  But it may be that that is simply the result of the detainee’s own refusal to cooperate in obtaining that travel document.

59.  In such a case, and where the detained person simply flatly refuses to provide the necessary cooperation in obtaining the travel document, the question may arise as to whether there comes a point in time where the length of detention nevertheless out ways the fact of the self-imposed impediment to its ending (albeit upon removal or deportation)  in the balancing exercise, such that the length of detention becomes unreasonable, and hence unlawful.

60.  But, that then raises the question as to what would happen.  Assuming a decision is made that the detention has become unlawful, that would ordinarily lead to an order for release on recognizance. But that release on recognizance would be “pending removal or deportation”. But, if the individual never cooperates in obtaining a travel document, the practical obstacle to removal or deportation will forever remain.  Does that mean that the individual can simply retain his or her liberty and remain in Hong Kong for as long as he or she refuses to cooperate?

61.  Looking overseas, it seems this point has received consideration which might also be something for Hong Kong to consider. In the United Kingdom, for instance, it is now a criminal offence for a person subject to immigration or administrative detention to fail to provide the necessary cooperation as will enable obtaining a travel document to effect his or her removal: see section 35 of the Asylum and Immigration (Treatment of Claimants, etc)  Act 2004.  If such a law were now in force in Hong Kong, it seems that a detainee who, without reasonable excuse, fails to comply with the requirement to take specified actions to enable a travel document to be obtained would be subject to criminal prosecution, likely leading to a period of imprisonment.  That period of imprisonment would not be a period of immigration or administrative detention as might trigger a review as to its lawfulness by reference to the Hardial Singh principles.

62.  This might be one way to consider breaking the possible impasse of the sort which seems potentially to be created in proceedings such as these – though the matter no longer arises here in light of the Applicant’s assertion that he will cooperate in obtaining a replacement travel document for him.  Of course, I have also recognised that the existing provisions of section 32(4A)  of the Ordinance identify that these matters can be taken into account in assessing the continued reasonableness of detention. But, it may be thought that some further consideration is appropriate.