MAJID, ALI alias ALI, MAJID v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1542/2023

[2023] HKCFI 2655

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1542 OF 2023

_____________

BETWEEN

_____________

_____________

REASONS FOR DECISION

_____________

1.  Introduction

1.1  This is the second application for a writ of habeas corpus by the applicant to obtain his release from detention. The first application, which was made on 18 May 2023 (“First Application”), was heard substantively and dismissed by Coleman J on 8 June 2023 (“8/6/23 Decision”)[1].

1.2  The present application was made on 31 August 2023. Pursuant to directions made on 5 September 2023, the respondents lodged and served their response on 4 October 2023 and the matter came before me on 11 October 2023.

1.3  At the hearing, the respondents were represented by Ms Augusta Wong, Government Counsel, who also signed the respondents’ response. The applicant appeared in person with the benefit of an Urdu/English Interpreter.

1.4  At the conclusion of the hearing on 11 October 2023, I dismissed the application and made no order as to costs. These are the reasons for my decision.

2.  The 8/6/23 Decision

2.1  The applicant is the subject of Deportation Order issued on 9 September 2021. He has been held in immigration detention since 7 September 2021 (except for two short intervening periods of imprisonment).

2.2  The background matters germane to the 8/6/23 Decision were set out at Sections B to F thereof covering (1) the applicant’s immigration status, (2) his criminal record and absconding record, (3) his failures to report to immigration recognizance and to comply with court bail, (4) his non-refoulement claim (“NRC”) and related proceedings, (5) the steps taken towards the applicant’s removal, and (6) the reviews undertaken of his detention.

2.3  As at the date of the hearing of the First Application on 8 June 2023, the applicant’s detention had lasted 632 days, which was acknowledged in the 8/6/23 Decision as objectively a very lengthy period. For the reasons set forth at 8/6/23 Decision §§41 to 53, Coleman J concluded that HS1 to HS4[2] were satisfied and that the lengthy period of detention from 7 September 2021 to 8 June 2023 had not become unlawful.

2.4  In particular, in his weighing exercise, the learned Judge observed, inter alia, that the applicant may fairly be characterized as a recidivist due to his long conviction of criminal offences and that there was also a substantial absconding risk. These two factors have been described at Harjang Singh §§164(14) to (21) as assuming critical and paramount importance in analyzing the lawfulness of the detention, bearing in mind the associated risk assessments must be carefully made in each case.

3.  Factual background of the present application

3.1  As at the date of the hearing before me on 11 October 2023, the applicant has been detained for an additional 125 days since the 8/6/23 Decision (from 9 June to 11 October 2023), totaling 757 days.

3.2  I do not intend to repeat the factual matters set out at 8/6/23 Decision §§5 to 32, which were not disputed by the applicant at the hearing before me. Instead, I will supplement here the factual developments which have taken place since the hearing of the First Application.

3.3  As regards the applicant’s NRC and related proceedings (8/6/23 Decision Section D), the applicant claimed that he had made written submissions on 25 August 2023 to the Court of Final Appeal in respect of the Rule 7 summons issued in FAMV 205/2023. I am told by Ms Wong that the decision is still pending.

3.4  As regards the applicant’s emergency travel document (8/6/23 Decision Section E2), its validity has been extended to 7 December 2023.

3.5  8/6/23 Decision Section E3 mentions two repatriation operations, the second of which was to take place on 13 June 2023, shortly after the hearing of the First Application. Like the first attempt, the second attempt was abortive as cooperation from the applicant was not forthcoming. The third attempt was conducted on 16 August 2023 and was aborted, again due to the applicant’s refusal to cooperate. The fourth attempt has been scheduled to take place in a few days’ time on 17 October 2023.

3.6  Further reviews of the applicant’s detention were conducted since those mentioned at 8/6/23 Decision Section F. In the latest review of the detention conducted on 3 October 2023, the same five grounds as those mentioned at 8/6/23 Decision §33 were identified as justifying the applicant’s detention, namely (1) the applicant’s removal is going to be possible within a reasonable time, (2) the applicant poses, or is likely to pose a threat or security risk to the community, (3) the applicant may abscond or (re)offend, (4) the applicant does not have close connection or fixed abode in Hong Kong, and (5) there are no other circumstances in favour of the applicant’s release (collectively “Five Detention Grounds”).

4.  Applicable principles

4.1  The applicable principles are set out in Harjang. I have borne in mind the guidance set out at Harjang §164. In the particular circumstances of this case where the applicant has recently made an application and the court has rejected his application for a writ of habeas corpus, I wish to make clear that whilst my conclusions may be said to be similar to those reached by Coleman J (especially where it is plain that in the present application the applicant has relied on matters similar to those ventilated at the First Application), I have not simply adopted Coleman J’s reasoning but have instead carried out my own assessment. The guidance given by the Court of Appeal in Harjang has made clear that the requisite assessment is time-sensitive, in that the weight to be given to (relevant) factors and risks vary as the period of detention increases in length: Harjang §164(11).

4.2  As has been emphasized on many previous occasions including in the 8/6/23 Decision, proceedings such as the present are not an opportunity for the applicant to continue to assert the concerns underpinning his NRC and the court in dealing with his habeas corpus application will not look at the merits of any such claim. The central question is whether there is and continues to be lawful detention for a detention.

5.  Applicant’s contentions

5.1  The applicant’s supporting affirmation is a rather lengthy document and includes 97 pages of “exhibits”. As I understand the document, it specifically challenges the first three of the Five Detention Grounds and in turns sets out the applicant’s contentions as to why his detention has fallen foul of HS1 to HS3. It would not be unfair to describe the applicant’s document as containing a fair degree of repetition.

5.2  Doing the best I can, the applicant’s contentions may be summarized as follows.

(1) The applicant’s liberty, which is a fundamental human right, has been denied. In addition, he alleges that his detention has been used as a trap in order to force or persuade him to succumb to the Director’s wish of having him removed from Hong Kong.

(2) He relies on the case of “Romeo Santiago HCMP 2592/1988” for his proposition that it has been acknowledged by the courts that a period of four months is a very long time for a person to be kept in detention pending his removal from Hong Kong. He emphasizes that he has been detained since 7 September 2021, which is far longer than four months. He reasons therefore that HS2 is not satisfied.

(3) The Secretary/Director has failed to remove/deport him and it is inconceivable any further period of detention will resolve the matters. Given such circumstances, he contends that the Secretary/Director is no longer using their powers to detain him for the purpose of deporting him and therefore (he reasons) HS1 is not satisfied.

(4) As it has become apparent that the Secretary/Director will not be able to effect deportation within a reasonable time, HS3 is also not satisfied.

(5) The respondents have failed to acknowledge and take into account his physical and mental health problems and his condition has worsened since the time of his transfer to Tai Tam Gap Correctional Institution, as the facilities there are uncomfortable or complex.

(6) The statistics show that criminal activities committed by visitors, which also include Form 8 holders, are low and there is therefore no justification for the Immigration Department’s view on how a detainee poses a security risk or threat to the community.

(7) His criminal convictions were largely due to his struggle with his addiction and he has seriously reflected on his past and now promises to turn a new leaf.

(8) He points out that other detainees have been released from detention and questions why the same considerations are not afforded to him.

(9) He claims that he has a fixed abode in Hong Kong.

5.3  At the hearing before me, the applicant adopted the matters set out in his written material. He emphasized the length of his detention and also procured a friend, one Mr Khan Muhammad Owais, to attend the hearing to stand as his guarantor. He pointed out that his uncooperating stance in relation to the previous repatriation arrangements stemmed from his perception that he would be in danger if repatriated.

5.4  It is significant to point out that whilst the applicant stated that he did not mind being detained until the next repatriation arrangement on 17 October 2023, he asserted that he ought to be released if the upcoming repatriation arrangement will become abortive again, essentially telegraphing his intention to be uncooperative at the upcoming repatriation arrangement.

6.  Analysis

6.1  At 8/6/23 Decision Section I, Coleman J set out his analysis on whether the applicant’s detention has become unlawful.  The learned Judge’s application of the Hardial Singh principles is set out at §§44 to 53 thereof.

6.2  I have considered the matters raised by the parties, many of which were ventilated before Coleman J, in the light of the now longer period of the applicant’s detention. Despite the fact that the applicant has now been detained for an additional 125 days, I have come to similar conclusions as those of Coleman J. Indeed, I venture to state that, in the normal course and absent any material change in circumstances, it would be unrealistic for an applicant to expect a fundamentally different result from a review recently carried out by another court.

6.3  The additional period of detention does not and cannot alter the fact that, as set out at 8/6/23 Decision §§41 to 42, there was and remains clear prima facie authority for the detention of the applicant. The question remains whether the overall circumstances have rendered continued detention unreasonable and hence unlawful.

6.4  It is important to note that the 8/6/23 Decision already acknowledged that the applicant has been detained for a very substantial period of time. The question is whether the additional period of detention (ie 125 days) would substantially alter the weighing and balancing exercise.

6.5  In my view, it does not. Indeed, the factual developments since the hearing of the First Application have reinforced the existence of some of the risks which justify the applicant’s continued detention.

6.6  A prominent feature in the present case is the applicant’s attack on whether HS1 and HS3 are satisfied as the previous repatriation arrangements were abortive due to his uncooperative attitude.

6.7  It seems to me that the applicant has fundamentally misunderstood the Hardial Singh principles which are as follows:

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

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

(3) (HS3) 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; and

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

6.8  It is plain that HS1 requires the Secretary/Director to use the power to detain if they intend to deport the detainee. Given the various repatriation arrangements, it is unquestionable that the respondents intend to deport the applicant.

6.9  The applicant suggests that because he had frustrated the previous repatriation arrangements (and the inference is that he will frustrate the upcoming arrangement) by being uncooperative, the respondents are therefore unable to effect deportation. The argument put forward by the applicant is perverse and incorrect for the following reasons.

(1) HS3 enjoins the Secretary/Direction to refrain from exercising the power of detention if they will not be able to effect deportation within the reasonable period assessed under HS2.

(2) In so far as the applicant seeks to justify his uncooperating attitude by his own perception of being in danger if repatriated, this is an attempt to continue to assert the concerns underpinning his NRC, which, as stated at §4.2 above, is not a “live” issue in these proceedings.

(3) It is plainly a wrong application of the Hardial Singh principles to view the applicant’s own frustration of the repatriation arrangements as the respondents’ inability to effect deportation under HS3. Were the applicant’s contention correct, it would lead to an absurd result, namely that any detainee can succeed on an application for a writ of habeas corpus by refusing to be repatriated.

(4) Instead, in my view, the applicant’s persistent and repeated refusal to cooperate in the repatriation arrangements is predominantly relevant to the assessment of the reasonableness of the detention period under HS2, in that his behavior provides a credible basis to come to the view that the risks of absconding have only increased since the 8/6/23 Decision[3]. As has been pointed out at Harjang §164(10), the risk of absconding is important because of a person absconds it will defeat the primary purpose for which the power to detain has been conferred.

6.10  I agree with Ms Wong that there are no legal impediments to the applicant’s removal under the Updated Removal Policy which has come into effect since 7 December 2022. Factually, the validity of the applicant’s emergency travel document has been extended to 7 December 2023.

6.11  The additional detention period in the present case does not materially alter the weight to be attached to the Director’s (correct and justified) assessment that there is a real risk of the applicant reoffending[4]. Like Coleman J, I am also of the view that the applicant’s assertion that he has turned a new leaf is to be viewed with circumspection. I do not regard the applicant can derive assistance from the statistics on criminal activities committed by visitors as having the effect of ameliorating the risks of he himself reoffending, given his long conviction record of criminal offences.

6.12  As regards the applicant’s complaint in relation to his medical conditions, I agree with Ms Wong that there is no reason to believe that the applicant would not receive proper medical treatment whilst detained: Manuri Intekhab Alam Mohamed Shakil Reza v Hong Kong SAR Government, HCAL 2428/2018 (6 November 2018) at §27. As already noted at 8/6/23 Decision §51, the medical notes adduced by the applicant seem to demonstrate that he has been able to receive medical attention while in detention. Indeed, it appears from the medical notes that the applicant has received treatment from external institutions such as Queen Mary Hospital and PYNEH[5] (the latter specifically for treatment of his mental health problems).

6.13  I do not regard the offer of a guarantor is a particularly weighty matter in the balancing exercise in this case, given (1) his previous records of failing to report to immigration recognizance and jumping court bail and (2) the risks of the applicant absconding as set out at §6.9(4) above.

6.14  I also agree with Ms Wong that it is futile for the applicant to compare himself with other detainees as each case turns on its own facts.

6.15  For the above reasons, I am of the view that the respondents have shown, and I am of the view, that HS1 to HS4 are satisfied. I note in particular that the applicant has realistically not contended that HS4 has not been satisfied.

7.  Conclusion

7.1  By reason of the matters stated above, I have come to the conclusion that there is, and continues to be, lawful authority for the applicant’s detention, especially given his imminent repatriation in a few days’ time on 17 October 2023 (and hence release from detention). At the conclusion of the hearing before me, I therefore dismissed the application with no order as to costs.

7.2  I hope I have explained in these reasons clearly to the applicant that his continued uncooperative attitude in his repatriation arrangements is unnecessarily prolonging his period of detention. Contrary to the position he has adopted in the present application, his reluctance to be cooperative, on its own, is also unlikely to give rise to a proper basis for another application for a writ of habeas corpus.