DOPTORY MD. KOBIR v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 2176/2023

[2024] HKCFI 326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2176 OF 2023

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J U D G M E N T

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A.  Application

1.  By an ex parte application dated 5 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 Bangladeshi national who arrived in Hong Kong on the strength of his passport on 18 April 2017. He was permitted to stay for 7 days until 25 April 2017 but he overstayed. On 27 April 2017, the Applicant surrendered himself to the Immigration Department (“ID”) for overstaying in Hong Kong. He was released on recognizance on 27 June 2017.

3.  On 4 August 2017, a removal order was issued against the Applicant (the “Removal Order”) which remains valid.

4.  During his release on recognizance, he was arrested for taking employment while being a person in respect of whom a removal order is in force. He was convicted of the offence on 16 January 2023 and was sentenced to 15 months’ imprisonment.

5.  After being discharged from prison on 4 September 2023, the Applicant was transferred to Tai Tam Gap Correctional Institution for detention under section 32(3A) of the Immigration Ordinance (Cap 115) (the “Ordinance”). A deportation order (the “Deportation Order”) was made against him on 9 November 2023 which remains valid.

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

7.  The Applicant’s passport had expired in November 2021.

8.  At the time of the hearing, the Applicant has been detained for 143 days.

C.  NRC related proceedings

9.  The Applicant first lodged his non-refoulement claim (the “NRC”) on 27 June 2017. The Director of Immigration (the “Director”) rejected the Applicant’s NRC on 31 July 2018 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 18 July 2019 (the “TCAB Decision”).

10.  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 2072/2019 dated 30 December 2022, after the Applicant withdrew his application.

11.  According to the updated removal policy of the ID 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.

12.  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

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

Date of Sentence	Offence	Sentence/Period of Imprisonment
16 January 2023	Taking employment while being a person in respect of whom a removal order is in force	15 months

E.  Steps towards Removal

14.  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 Applicant has adopted an un-cooperative attitude to his repatriation. He has refused to comply with the re-entry formalities. He has also refused to attend interviews with the Consulate General of the People’s Republic of Bangladesh (the “Bangladesh CG”).

15.  Even before the Applicant’s current detention, the ID has requested for verification of the Applicant’s identity and the issuance of a travel document since April 2023. In view of the Applicant’s failure to co-operate in completing the re-entry formalities in applying for a valid travel document, the ID had since 22 November 2023 written to the Bangladesh CG requesting confirmation of the Applicant’s identity and issuance of a travel document. The efforts of the ID were repeated on 8 December 2023 and 5 January 2024 by phone calls seeking alternative re-entry process or exemption of the requirements of application form and interview. The Bangladesh CG indicated that the application form and interview were still required for the issuance of a travel document. Generally speaking, the processing time of issuing a travel document was about two weeks upon fulfilling all requirements as set by the Bangladesh CG for co-operative cases.

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

F.  Applicable Principles

17.  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.

18.  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

19.  The Applicant has set out his grounds for application in his affirmation filed on 5 December 2023. In summary, they are as follows:

(1)  The length of the detention since 4 September 2023 has become an indefinite detention. The Applicant said that that an initially lawful detention can become unlawful if it falls foul of the Hardial Singh principles.

(2)  The Applicant’s NRC is still ongoing.

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

(4)  He does not pose any security risk.

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

(1)  The Applicant claimed that he was suffering physically as he has developed lumps on his arms and he was suffering mentally.

(2)  He claimed that he had not refused to fill out the form for re-entry, but only indicated that he did not want to go back to Bangladesh.

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

H.  Lawful Authority for Detention?

22.  The Removal Order was issued on 4 August 2017 and remains valid.

23.  From 4 September 2023 to 24 October 2023, the Applicant was detained under section 32(3A) of the Ordinance pending his removal from Hong Kong pursuant to the Removal Order.

24.  From 25 October 2023 to 7 November 2023, the Applicant was detained under section 29(1) of the Ordinance for the purpose of making inquiry whether the Applicant ought to be deported.

25.  From 8 November 2023 to 9 November 2023, the Applicant was detained under section 29(2) of the Ordinance for the purpose of enquiry whether the Applicant ought to be deported.

26.  From 9 November to present, the Applicant has been detained under section 32(3) of the Ordinance for removal under a Deportation Order.

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

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

I.  Whether Detention has become unlawful

29.  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”).

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

HS1

31.  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

32.  The starting point is the length of the detention – about 143 days – against which all the other factors must be weighed and balanced.

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

(1)  Contrary to the Applicant’s claim, there does not seem to be any outstanding NRC application. In any event, pursuant to the updated removal policy, after the Applicant’s JR application was dismissed on 30 December 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. The ID said that the Applicant had refused to fill out an application form and to attend interviews with the Bangladesh CG. Although the Applicant denied having refused to fill out the application form, I find that to be unbelievable, as the ID had asked the Bangladesh CG to exempt the requisite entry formalities in view of the Applicant’s refusal to co-operate.

(3)  There is nothing to indicate that but for the Applicant’s repeated refusal to co-operate in obtaining a valid travel document, there was any further obstacle to his repatriation, hence release from detention.

(4)  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.”

(5)  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.

(6)  The risk of re-offending is high as the Applicant would need to work to support himself financially.

(7)  The Applicant has no local 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.

(8)  The Bangladesh CG has indicated that after compliance with the re-entry requirements, a travel document can be issued within 2 weeks. As the Applicant indicated at the hearing that he would now comply with the re-entry formalities and asked to be sent back to Bangladesh as soon as possible, it can be expected that his removal can be effected within a reasonable time.

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

HS4

34.  In view of the steps that had been taken by the Director as set out in paragraphs 15 – 16 above, I am of the view that the Director had diligently pursued the Applicant’s removal and I am satisfied that HS4 is satisfied.

35.  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

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