AMMAR ABDALMOEEN HUSSEIN IBRAHIM alias ABDALMOEEN HUSSEIN IBRAHIM AMMAR v. SECRETARY FOR SECURITY AND ANOTHER

HCAL 1680/2023

[2023] HKCFI 2913

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1680 OF 2023

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D E C I S I O N

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1.  Introduction

1.1  The Applicant is subject to a Removal Order (pursuant to section 19(1)(b) of the Immigration Ordinance Cap 115 (“Ordinance”)) and a Deportation Order (pursuant to section 20(1)(a) of the Ordinance) made respectively on 7 December 2017 and 14 August 2018. He has been held in immigration detention since 12 April 2023 pursuant to section 32(3) of the Ordinance. As at the date of the hearing before me, the Applicant has been detained for a period of 212 days.

1.2  On 19 September 2023, the Applicant applied for a writ of habeas corpus. Directions were thereafter given for the Respondents to file an initial response. At the hearing, the Applicant appeared in person, with the benefit of an interpreter, and the Respondents were represented by Mr Gabriel Cheung, Government Counsel, who also signed the initial response.

2.  Preliminary matter

2.1  On 1 November 2023, a Notice of Application for Legal Aid was issued by the Director of Legal Aid. By a letter dated 6 November 2023, the Department of Justice (“DoJ”) invited me to lift the automatic stay primarily on two bases. First, DoJ relies on Ousmane Issa Boubacar v Director of Immigration [2023] HKCFI 2602 and in particular §§7(4) and (5) at which Coleman J set out his reasons for lifting the legal aid stay in that case. Secondly, DoJ referred to the fact that the Applicant is scheduled to be released from detention on 13 November 2023 upon his deportation, which would be frustrated were the legal aid stay not lifted.

2.2  On 7 November 2023, I decided to follow the procedure adopted by Coleman J at Gilbert Muasa Nthale v Director of Immigration [2023] HKCFI 2576 §5. I therefore lifted the legal aid stay for the purpose of commencing today’s hearing, at which time I would consider the position further. Having considered the submissions made by the parties at the hearing, I lifted the legal aid stay completely and the hearing went ahead. I informed the parties I would set out my reasons for lifting the legal aid stay in writing.

2.3  At Ousmane §7, Coleman J set out the reasons for lifting the legal aid stay in that case. Whilst I accept that each case must be decided on its own facts, the bulk of the reasons given by Coleman J are of general application. In my view, those reasons are also apposite in the present case and I set them out as follows:-

(1)  Applications for a writ of habeas corpus are to be heard as soon as is practicable.

(2)  But, if a writ of habeas corpus has been issued in respect of a detained person, the person having custody of the detained person must not, until the writ has been discharged or the proceedings are concluded, allow the detained person to be removed from Hong Kong: section 22A(11) of the High Court Ordinance Cap 4.

(3)  Hence, the practical effect of the making of an application for writ of habeas corpus is to create a legal impediment to removal of the detained person from Hong Kong.

(4)  There is an inherent inconsistency between: (1) making an application which seeks immediate release from detention, and which should be heard as soon as possible; and (2) making another application which by its nature would prevent or delay release from detention, whether it is (a) an application for an adjournment, perhaps to seek legal advice, or (b) an application for legal aid which has the effect of triggering an automatic stay of 42 days.

(5)  There is also inconsistency or tension between an application which seeks immediate release and a collateral application which frustrates an imminent release in fact already arranged.

(6)  In this particular case, the Applicant is scheduled to be released from detention on 13 November 2023, upon his deportation.

(7)  Hence, if the Applicant is correct, and his detention has become and/or will become unlawful, his own action in applying for legal aid – thereby triggering the automatic stay – and seeking an adjournment might cause him real unfairness and prejudice.

(8)  At the hearing, the Applicant emphasized his wish to have legal representation as he was of the view that his case has merits. However, the counter risk of prejudice in depriving the Applicant of the potential opportunity to seek and obtain legal representation is significantly less likely to give rise to any real prejudice.

(9)  This is because of the approach to habeas corpus applications, where the central question to be determined is whether there is, and continues to be, lawful authority for the detention, where an originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

(10)  It is not incumbent on the Applicant to demonstrate unlawfulness.

(11)  The burden of showing that detention is lawful lies upon the respondent, but the court is the primary decision maker as to the reasonableness of the detainee's continued detention.

(12)  Either continuing detention is reasonable and so lawful, or it is not.

(13)  Further, on a habeas corpus application, the court is not dealing with a non-refoulement claim (“NRC”), and is not deciding whether the Applicant should or should not be removed from Hong Kong.

(14)  Instead, the court is deciding whether the Applicant – typically subject to a removal order and/or a deportation order – has been lawfully detained, and can continue to be lawfully detained, pending his removal or deportation from Hong Kong.

2.4  For the reasons set out in the preceding paragraph, I decided to lift the legal aid stay and proceeded to deal with the habeas corpus application.

3.  Background

3.1  The Applicant is a national of Jordan. On 17 September 2017, the Applicant arrived in Hong Kong and was permitted to stay until 17 October 2017. He has since overstayed in Hong Kong. On 15 November 2017, he was arrested by the police for being an overstayer and referred to the Immigration Department for investigation.

3.2  As stated above, a Removal Order was made against the Applicant on 7 December 2017. He was released on recognizance on 14 December 2017.

3.3  On 19 February 2018, the Applicant was arrested by the police for theft. He was convicted on 21 March 2018 and sentenced to 8 months’ imprisonment. Upon discharge from prison on 1 August 2018, he was transferred to the Immigration Department and kept in immigration detention.

3.4  On 14 August 2018, as stated above, a Deportation Order was made against the Applicant. He was released on recognizance on 14 May 2019.

3.5  On 26 April 2020, the Applicant was arrested by the police for theft. He was convicted on 13 July 2020 and sentenced to 13 months’ imprisonment. Upon his discharge from prison on 14 January 2021, he was transferred to the Immigration Department and detained under Section 32(3) of the Ordinance.

3.6  On 10 February 2021, the Applicant was released on recognizance.

3.7  On 14 October 2021, the Applicant was arrested by the police for assault occasioning actual bodily harm. On 4 November 2021, the Applicant jumped police bail and the bail money was forfeited. No charge was subsequently laid on the suspected offence.

3.8  On 3 February 2023, the Applicant was arrested by the police for theft. On 11 April 2023, the Applicant was convicted of theft and sentenced to 2 months’ imprisonment.

3.9  On 12 April 2023, the Applicant was discharged from prison, and he has since been kept in immigration detention pursuant to Section 32(3) of the Ordinance.

3.10  The Applicant says that he has a girlfriend in Hong Kong, one Ms Norma Lutchina (“Ms Lutchina”). Ms Lutchina is a foreign domestic helper in Hong Kong. According to Ms Lutchina, she has known the Applicant for 5 years and considers him as her future husband.

4.  The Applicant’s NRC and related proceedings

4.1  The Applicant’s NRC was rejected by the Director of Immigration (“Director”) on 12 December 2018 and his appeal/petition to the TCAB was dismissed on 28 February 2019.

4.2  On 29 March 2019, the Applicant applied for leave to apply for judicial review against the decision of the TCAB (HCAL 871/2019). On 31 January 2023, DHCJ K.W. Lung dismissed the leave application.

4.3  The Applicant’s subsequent application to extend time for his appeal against DHCJ K.W. Lung was refused by the Court of First Instance on 1 August 2023. The outcome of his renewed application to the Court of Appeal (CAMP 298/2023) for extension of time made on 29 August 2023 is pending.

5.  Current detention and its reviews

5.1  As stated at §3.9 above, the current detention commenced on 12 April 2023, following the Applicant’s release from prison. By that time, DHCJ K.W. Lung had already dismissed HCAL 871/2019 and there was no further legal impediment to the Applicant’s removal/deportation under the Updated Removal Policy. The Notice of Detention relied on the following broad grounds for the Applicant’s detention: (1) His removal was going to be possible within a reasonable time; (2) he posed, or was likely to pose, a threat or security risk to the community; (3) he may abscond and/or (re)offend; (4) he did not have close connection or fixed abode in Hong Kong and (5) there were no other circumstances in favour of his release.

5.2  There are a number of prominent features in the Applicant’s current detention.

5.3  First, the Applicant has steadfastly expressed his unwillingness to return of his home country.

(1)  The validity of his passport expired on 3 December 2021 and the Director had actively liaised with the Honorary Consulate of the Hashemite Kingdom of Jordan (“Jordan CG”) requesting assistance to issue to the Applicant a replacement travel document. The Applicant however refused to complete his re-entry application form (on 10 May, 17 May, and 6 June 2023).

(2)  As advised by Jordan CG, the Immigration Department contacted the Embassy of the Hashemite Kingdom of Jordan in Beijing on 14 July 2023. On 18 July 2023, the Embassy confirmed that the Applicant could travel to Jordan on the strength of his expired passport. Between 1 August and 5 September 2023, the Applicant on 8 occasions continued to express his unwillingness to return to his home country.

(3)  On 11 September 2023, due to the Applicant’s strong resistance, a repatriation operation was cancelled. The Applicant was told that his own lack of cooperation had the effect of lengthening the repatriation process.

(4)  On 25 October 2023, arrangement for another repatriation was made and a removal flight on 13 November 2023 was secured.

5.4  Secondly, the Applicant has required medical care on a number of occasions, including consultation or hospitalization at Tuen Mun Hospital, Siu Lam Psychiatric Centre and Queen Mary Hospital.

5.5  The Applicant’s detention was subject to a number of reviews which all recommended against release of the Applicant. In the latest review of the Applicant’s detention dated 31 October 2023 (but interpreted to the Applicant on 8 November 2023)[1], the grounds for the Applicant’s continued detention were broadly the same as those stated in the Notice of Detention dated 12 April 2023 (§5.1 above), except the ground that the Applicant did not have close connection or fixed abode in Hong Kong was not maintained.

6.  The applicable principles

6.1  The applicable principles are set out in Harjang Singh v Secretary for Security [2022] HKCA 781. I have in particular borne in mind the summary set out at §164 thereof.

6.2  I remind myself that the burden is on the respondent to an application for a writ of habeas corpus to justify the lawfulness of the Applicant’s detention.

6.3  Further, as has been stated and repeated in many previous decisions, an application for a writ of habeas corpus is not an opportunity for the Applicant to continue to assert the concerns underpinning his NRC and the court in his habeas corpus application will not look at the merits of any such claim. The central question is whether the detention has become or will foreseeably become unreasonable in all the circumstances and hence unlawful.

7.  The Applicant’s submissions

7.1  In addition to his affirmation in support of the present application, the Applicant (and Ms Lutchina) had written a number of letters to the court. Their content may be summarized as follows:-

(1)  He has an outstanding case pending (§4.3 above).

(2)  He is suffering from a number of medical ailments and mental conditions and does not believe he is receiving appropriate medical care. Indeed, he takes that view that he is being neglected and is left to die in detention.

(3)  He fears for his own safety, if repatriated back to Jordan. He has provided updates of news articles reporting on the recent turmoil in Jordan and in particular the force used for the Jordanian police or security forces.

(4)  He provides an explanation for jumping police bail in 2021 (§3.7 above). He explains that he was at that time hospitalized.

(5)  He provides explanations for his previous convictions and promised he would not re-offend.

(6)  He refers to an incident in 2017 when he was allegedly badly assaulted by immigration officers and asserts that substance was injected into him. He claims that his current medical condition is in part caused by that alleged assault and he wishes to follow up on his complaints allegedly already made.

(7)  His sick mother (who lives in Jordan) is worried about his continued detention which has caused her own condition to deteriorate.

(8)  He has been in detention for a lengthy period and his liberty is a fundamental human right.

(9)  There are merits in his NRC claim and it was wrongly rejected by the Director and TCAB.

(10)  Ms Lutchina states that she plans to provide a place in a boarding house in Mongkok for the Applicant and would monitor the Applicant.

7.2  Despite rounds of letters sent to the court prior to the hearing, the Applicant sought to adduce a substantial volume of new materials at the hearing. Having perused the new materials, they seem to me to contain substantial replication of materials already before the court. I therefore specifically went through with the Applicant at the hearing the matters identified in the previous paragraph and he confirmed that they represented the substance of his case.

8.  Analysis

8.1  Throughout the Applicant’s detention period, there has been prima facie lawful authority to detain the Applicant pursuant to Section 32(3) of the Ordinance.

8.2  The question which falls for determination is therefore whether the detention has become unreasonable in all the circumstances, and hence unlawful. The starting point is the period of detention, namely 212 days, against which the various other factors must be weighed and balanced.

8.3  I acknowledge that 212 days is objectively a lengthy period.

8.4  I accept that, throughout the period of detention, the intention of the Director is to remove/deport the Applicant and that has been the only purpose of the Applicant’s detention. HS1 is satisfied.

8.5  I also accept that the Director has acted with diligence and expedition to effect the Applicant’s removal. This is amply demonstrated by the attempts made, despite the Applicant’s uncooperative stance, initially to complete the reentry formalities. After it was confirmed that the Applicant could return to Jordan on the strength of his expired passport, repatriation was arranged. HS4 is satisfied.

8.6  Following DHCJ K.W. Lung’s dismissal of the applicant’s leave application, there was and is no longer any legal impediment to removal. The practical obstacle to removal was the Applicant’s own uncooperative attitude. I accept Mr Cheung’s submission that had the Applicant chosen to cooperate, the Applicant could have been removed/deported (and hence released from detention) earlier. I think Mr Cheung is right in his submission that the Applicant has contributed to the length in detention, which factor I take into account and give weight: Sections 32(4A)(d) and (e) of the Ordinance.

8.7  Although the applicant has some verifiable local connection, Ms Lutchina is a foreign domestic helper and cannot provide any stable accommodation arrangement for the Applicant, if released. Coupled with the imminent patriation operation, I agree with Mr Cheung that this factor should be given less weight.

8.8  I further agree with Mr Cheung that the Applicant’s criminal records reveal a risk of (re)offending, if released on recognizance. Ms Lutchina, despite her claim that she would monitor the Applicant, does not appear to be in a position to ameliorate the risk of the Applicant (re)offending. According to Ms Lutchina, her relationship with the Applicant started 5 years ago and the Applicant had since committed two of the three offences for which he was convicted. I also do not attach weight to the claim by the Applicant that he has now turned a new leaf and will not reoffend again.

8.9  At the hearing, the Applicant appeared to be physically frail. Whilst I am sympathetic to the Applicant’s medical conditions, I agree with Mr Cheung that the evidence shows that the Applicant has all along received medical treatment, and on various occasions in public hospitals. In fact, throughout the current detention, the contemporaneous records show unequivocally that the Applicant was constantly advised to alert the welfare officer whenever he required medical attention.

8.10  I do not attach weight to the Applicant’s allegation that he was assaulted by immigration officers in 2018. Not only is there a palpable lack of evidence in support of the allegation (apart from the Applicant’s own assertions), it cannot excuse his commission of various offences for which he has been convicted or justify his wish to remain in Hong Kong. His professed wish to follow up on the allegations is suspect given his inaction for a lengthy period of time. In any event, his complaint may be pursued even if he was repatriated.

8.11  In so far as the Applicant seeks to justify his uncooperative attitude by reason of the fear for his own safety if repatriated, it is an attempt to reassert the concerns underpinning his NRC and, as stated above, the court in his habeas corpus application will not look at the merits of any such claim.

8.12  For the above reasons, HS2 and HS3 are also satisfied.

9.  Conclusion

9.1  I am satisfied that the Applicant’s detention, and likely foreseeable future period of detention, has been and will remain lawful.

9.2  As a result, the Applicant’s application is dismissed with no order as to costs.