KARNAIL SINGH v. DIRECTOR OF IMMIGRATION

HCAL 1079/2022

[2022] HKCFI 3360

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1079 OF 2022

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D E C I S I O N

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A.  Introduction

1.  The Applicant is currently held in immigration detention, pending his removal from Hong Kong pursuant to a Removal Order issued on 7 October 2013. Thus, his detention is authorized by section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”). The present period of detention commenced on 20 April 2022, and to date has lasted 196 days, about 6½ months.

2.  On 7 October 2022, the Applicant applied for writ of habeas corpus on the basis that his detention has become unlawful.

3.  I gave directions for the matter to come to today’s hearing. Those directions included for the Respondent (“Director”) to provide an initial response to the application, and for the Applicant to have leave to file a reply to that initial response. The initial response was filed, but the Applicant has not filed any reply.

4.  At the hearing, the Applicant has appeared in person (with the assistance of a Punjabi interpreter). The Director was represented at the hearing today by Ms Hikki Wong, Senior Government Counsel, who placed reliance on the initial response/skeleton argument also signed by her.

5.  This is my Decision.

B.  Background Facts

B.1  Immigration Status

6.  The Applicant is an Indian national. He arrived in Hong Kong on 9 May 2011 and was granted permission to stay as a visitor until 23 May 2011. But he did not leave Hong Kong within his limit of stay. He was then arrested by Police for overstaying on 7 August 2013 and was sentenced to 2 months’ imprisonment on 10 August 2013.

7.  As stated, he is now subject to a Removal Order issued on 7 October 2013. The Removal Order was issued under section 19(1)(b) of the Ordinance. It has remained in force throughout.

8.  The power to detain pending removal under such a removal order is to be found in section 32(3A) of the Ordinance, which provides:

A person in respect of whom a removal order under section 19(1)(b) is in force may be detained under the authority of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration pending his removal from Hong Kong under section 25.

B.2  NRC and JR

9.  After the Applicant was arrested for overstaying on 7 August 2013, he attempted to lodge a non-refoulement claim (“NRC”) on 20 August 2013. The first attempt was rejected on the basis that he did not provide reasons for his NRC claim. He applied for NRC again in 2015 and a proper claim was considered made in early 2016.

10.  His NRC was rejected by the Director in 2016 then by the Torture Claims Appeal Board / Non-refoulement Claims Petition office (“Board”) in 2017.

11.  Having exhausted all the administrative avenues, he took his case to the Court of First Instance (“CFI”) in 2017 by way of an application for leave to apply for judicial review. The CFI refused leave in 2018. He then appealed to the Court of Appeal (“CA”) and eventually the Court of Final Appeal (“CFA”) which refused leave to appeal on 11 January 2019.

12.  The Applicant then, on 15 June 2021, requested to make a subsequent claim (“SubC”) on some alleged new information coming from his home country. The Director disallowed the request on 24 September 2021. The Applicant then applied for leave to judicially review the rejection on 13 June 2022, though by then the application was about 6 months out of time. The Court then fixed an oral hearing for the leave application and indicated that the hearing would also deal with the issue of whether a restrictive proceedings order (“RPO”) should be imposed. About a week before the scheduled hearing, the Applicant wrote to the Court to withdraw his application. The letter also said that he wanted to go back and had solved his problems. The Court then proceeded to dismiss the application on 17 August 2022.

13.  On 21 October 2022, the Applicant requested to make a SubC. But, on 25 October 2022, the Director wrote to the Applicant stating that his request to make a SubC had already been refused on 24 September 2021.

B.3  Periods of Detention and Reviews

14.  Before the present period of detention, the Applicant was subject to two brief periods of detention: one right after he was arrested by the Police and before the sentence for his overstaying conviction began (8 to 9 August 2013); and another one right after his release from imprisonment (16 September 2013 to 19 October 2013). Since 19 October 2013, he had been released on recognizance until recognizance was terminated on 20 April 2022, marking the beginning of the present detention.

15.  During the currency of the present detention, his detention has been reviewed twice, on 5 July 2022 and 11 October 2022 respectively. On both occasions, continued detention was recommended. The grounds for continued detention were that: (a) his removal is going to possible within a reasonable time; (b) his removal is imminent once the application for re-entry into India is completed; (c) he has no outstanding claim or legal proceedings impeding removal: (d) although he has put forward a permanent Hong Kong resident as a guarantor, that does not outweigh the factors favouring continued detention: and (e) there are no other circumstances favouring his release.

16.  I think it also worth mentioning that the Applicant’s stance towards removal has varied from time to time during his detention. At various times he has requested arrangements for travel document and for him to be sent back to his home country as soon as possible, and has maintained his willingness to return. At other times he has expressed unwillingness to return to his home country. Latterly, this has been his stance, usually combined with a request to be released on recognizance/bail.

17.  I also note that the Applicant has himself made various written request to the Director to be released, and has also instructed lawyers to request his release. However, release has been refused under the various regular reviews of his detention.

B.4  Steps towards Removal

18.  When the present detention commenced on 20 April 2022, there were no outstanding NRC-related legal proceedings, until the Applicant applied for leave to judicially review the rejection of his SubC request on 13 June 2022, almost 6 months beyond the 3-month time for doing so. But after that application was dismissed on 17 August 2022, the remaining obstacle towards his removal was his expired Indian passport.

19.  The Director has actively liaised with the Consulate General of the Republic of India (“Indian Consulate”) to replace the Applicant’s expired passport. An Emergency Certificate was eventually issued on 23 September 2022, with the validity period expiring on 22 March 2023.

20.  The Director has arranged for a repatriation flight scheduled for 10 November 2022 to send the Applicant back to India.

21.  As it now stands, it appears that there are no obstacles towards his removal except this habeas corpus application.

C.  Applicable Principles

22.  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.

23.  The summary is as follows:

(1)  The central question on an application for habeas corpus is whether there is, and continues to be, lawful authority for a detention.

(2)  An originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

(3)  What is a ‘reasonable time’ will therefore depend upon the circumstances of the particular case, taking into account all relevant factors.

(4)  The lawfulness of detention, or continuing detention, is subject to potential objective review by the Court. But the review is not a review as to Wednesbury unreasonableness, or on other public law grounds.

(5)  Either continuing detention is reasonable and so lawful, or it is not. Though the Court’s review involves an exercise of judgment and balance, that is not a discretionary decision.

(6)  Hence, the Court is the judge of, and the primary decision maker as to, the reasonableness of the detainee’s continued detention.

(7)  The burden of showing that detention is lawful lies upon the Secretary and Director.

(8)  The assessment will be made in line with the ‘Hardial Singh principles’, namely that:

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

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

(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

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

(9)  Any relevant factor may affect the length of time of detention that might be regarded as reasonable. Whilst in a specific case one or more factors may have especial weight, no factor is necessarily determinative.

(10)  A review of what might be regarded as a reasonable period of detention will include at least: (a) the length of the period of detention; (b) the nature of the obstacles which stand in the path of the Director preventing a deportation; (c) the diligence, speed and effectiveness of the steps taken by the Director to surmount such obstacles; (d) the conditions in which the detained person is being kept; (e) the effect of detention on him and his family; (f) the risk that if he is released from detention he will abscond (which may have the effect of defeating the deportation order); and (g) the danger that, if released, he will commit criminal offences.

(11)  It is helpful first to identify and have firmly in mind the period of detention to date, before balancing the various other factors and risks against that period. This is because the weight to be given to the other factors and risks will vary as the period of detention iNRCeases in length.

(12)  Though it might seem attractive to set guideline periods or a red line (in terms of months or years) applicable to all cases, as to the circumstances in which a lawful detention becomes unreasonable and hence unlawful, no such guidelines can be set. Indeed, any attempt to do so is unhelpful. Reference to the facts of other cases is also likely unhelpful.

(13)  Nor would it be correct to think that the longer any period of detention, the greater the scrutiny that would be applied to it. Every deprivation of liberty pending deportation requires proper scrutiny of all the facts, in accordance with the Hardial Singh principles, which are the sole guidelines.

(14)  The risks of absconding and reoffending are of critical and paramount importance in the assessment of the lawfulness of the detention.

(15)  This is because if a person absconds, it will defeat the primary purpose for which the power to detain has been conferred, and for which the detention order was made in the particular case.

(16)  However, a very careful assessment of the risk must be made in each case, as the magnitude and potential impact of that risk will vary according to the circumstances.

(17)  The risk of absconding is distinct from the risk of committing further offences, and not dependent on that further risk.

(18)  The risk of reoffending requires its own distinct assessment, by reference to both its likelihood and seriousness.

(19)  Neither risk can justify detention of any length, as that would permit indefinite detention.

(20)  The longer the detention, the greater the risk necessary to justify it.

(21)  The Court will rigorously scrutinise the Secretary/Director’s assessment of risk on both grounds, and the weight to be given to that assessment will include consideration as to how convincing the reasoning is.

(22)  When assessing (a) the probability that removal can be effected at all and (b) the proximity of the time to removal, a real sense of the timescale likely to be involved must be identified to be able to qualify it as reasonable.

(23)  There must be a sufficient prospect of removal to warrant continued detention, having regard to and balanced against the weight of all other circumstances of the case.

(24)  As the period of detention gets longer, the greater the degree of certainty and proximity of removal would be expected to be required in order to justify continued detention.

(25)  On any appeal from a first instance decision of the Court, the appellate court will not interfere with the judge’s decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts. The leeway given to the first instance judge is not as a result of the view that he has made a discretionary decision, but rather as a reflection that the balancing exercise can be difficult.

D.  Applicant’s grounds

24.  The Applicant did not put forward any grounds pointing to the unlawfulness of the present detention in the body of his supporting affirmation. But he has attached 14 pages to the affirmation – albeit not referred to as exhibits in the affirmation.

25.  The first 6 pages and the last page of the attachments are written submissions signed by him or said to be authored by him, albeit in different hand-writing. The remaining pages are mostly documents apparently to show the danger he would face in India.

26.  The submissions are, broadly, in three parts.

27.  First, it appears that the Applicant tries to address what may be viewed as the usual grounds for the Director to recommend continued detention, albeit some of the grounds he has sought to address were not relied upon by the Director in the Applicant’s own case:

(1)  He asks rhetorically what a reasonable time for removal is and that he has been detained for 6 months and he does not believe that is reasonable.

(2)  He says he has never absconded and has never committed any offences in Hong Kong. There is no risk of his absconding or reoffending.

(3)  He has lived in Hong Kong for a long time, he has no connection with terrorist activities and would not pose any threat or security risk to the community.

(4)  There could be no doubt about the genuineness of his identity because Form 8 was issued to him on 18 October 2013.

(5)  He has provided a permanent Hong Kong resident as his guarantor. The Director could not say he has no close connection or fixed abode.

(6)  He would like to know that kind of circumstances would be considered as favourable circumstances for release.

28.  Second, he emphasizes that it would still be dangerous for him to go back to India. He refers to recent incidents where his family was harmed by his enemy in India. In particular, he refers to the fact that his wife has been beaten, has suffered a serious head injury, placing her in a coma.

29.  Third, he is currently detained in Tai Tam Gap Correctional Institution (“TGCI”). In gist, he says the usual prison rules were enforced against him and he was treated like a prisoner. Detainees would be subject to full body-strip searches, including X-Ray and anal cavity scan. They would also be subject to urine-test for dangerous drugs. The code of discipline for prison would enforced strictly, e.g. they would be locked up in a separate confined cell for 23 hours for minor breaches such as borrowing a book from another detainee.

30.  During the oral hearing, the Applicant made further submissions, first by handing up some more written material and then by oral addition. The written material is in a form which has become relatively routinely provided by applicants in recent habeas corpus applications. The thrust of these points is as follows:

(1)  Guidance on what is a reasonable period of time for detention – a fact sensitive question – can be found in the cases, which include reference to the conditions in which a detained person is kept, and the effect of detention on him and his family.

(2)  A relevant consideration is also the merits of the judicial process pursued by the detainee which could impede his or her removal.

(3)  The most important consideration is the length of time already spent in detention.

(4)  If a four-month period has been decided as a long time in other cases, the period of detention for the Applicant in this case is even longer.

(5)  Compared to the facts of other cases, there is no logic as to why the Applicant should continue to be detained.

(6)  When looking at the Director’s own internal consideration, it is important for the Court to be able to see the basis of the assessment, and what has been taken into account in the weighing process.

(7)  That requires a more substantial and precise statement than merely one of a belief that the Applicant could be removed within a reasonable period of time.

31.  Also handed up by the Applicant at the hearing were some medical records. But he did not speak to them. His oral submissions focused on the following points (some of which were repetitions of what he had already said in writing):

(1)  The Applicant emphasised that he has a clear record, and that he will not commit any crime.

(2)  He has made multiple requests to be released on recognizance/bail, but all requests have been rejected even when made by his lawyers.

(3)  Since being detained, he has learned from his family in India that they have been attacked. His wife was beaten with an iron rod and suffered serious head injuries. His father suffered serious back and leg injuries.

(4)  His father had informed him that their enemies had threatened to kill them all if the Applicant were to return to India.

(5)  Despite informing the authorities of these facts, he has still not been released.

(6)  During detention, he has been treated as though he were a criminal, required to follow strict rules.

(7)  Detention has placed tremendous mental and physical stress on him, which led to his wrong decision to withdraw his JR application.

(8)  He cannot stay in Hong Kong, but he also cannot go back to India. So he wants to be released so that, with the assistance of friends, he can hire a lawyer to help him with his NRC application.

(9)  Whilst he has been detained since April, it is only since he made this habeas corpus application that matters have been suddenly quickly progressed to seek to effect his removal.

(10)  He sincerely requests the court to guide and assist him, to release him on bail so that he can pursue his claim.

32.  Most of those points relate to whether the Applicant should or should not be removed, and whether the applicant should or should not have his NRC re-opened and/or allowed. But, as has been frequently emphasized in recent judgments for habeas corpus application, this Court is not tasked with deciding whether the detainee should be returned, but whether he should be detained or released on recognizance pending his removal. Thus, submissions going to the merits of the Applicant’s NRC are not relevant to the current application, which turns on the continued lawfulness or otherwise of his continuing detention pending removal. I specifically make no comment on the merits or otherwise of the Applicant’s NRC and his family situation, save to say that I do not accept that he could only have pursued matters if released on recognizance.

33.  Whilst the conditions of detention are a relevant factor to be taken into account in the overall exercise of my discretion, I do not consider that they are determinative in this application and I would not revisit them in my analysis below. But I have borne them in mind.

34.  The other points I have taken into account, and will mention as appropriate below.

E.  Discussion

35.  The burden in this application falls on the Director to show lawfulness.

36.  The Removal Order issued against the Applicant is valid and extant. The detention of the Applicant under section 32(3A) of the Ordinance clearly provides prima facie lawful authority to detain the Applicant pending removal. The question raised by this application is whether the detention has become unlawful, as a result of the period of detention becoming unreasonable in all the circumstances – when looking at the Hardial Singh principles outlined above.

37.  Ms Wong submits that the detention of the Applicant has been reasonable at each stage, and throughout the entire 196 days. Having carefully considered the circumstances, I agree.

38.  First, the Director does intend to deport the Applicant and is only using the power to detain for that purpose. The Director intends to remove the Applicant as soon as possible. There was no legal impediment when the detention commenced and the judicial review when raised was quickly deposed of (upon the applicant’s own withdrawal of it). Efforts had been made to obtain a replacement travel document which was ultimately issued on 23 September 2022 and a repatriation flight has already been scheduled for 10 November 2022. HS1 is satisfied.

39.  Secondly, the Director has acted with reasonable diligence and expedition to effect removal, evident by the replacement travel document and the removal operation to be carried out on 10 November 2022. HS4 is satisfied.

40.  Thirdly, as said, there were no extant NRC or related judicial review proceedings when the present detention commenced and the judicial review when raised was quickly disposed of. I note the Applicant’s current stance that he wishes to resurrect his NRC, but the fact remains that there is no such extant claim. Indeed, it seems to me likely that his previous claim was withdrawn when he recognised the possibility that it would be dismissed and that an RPO would be made. In the circumstances, and where efforts were made to secure a replacement travel documents and a repatriation flight, the Director was correctly of the view that the Applicant could likely be removed within a reasonable period of time. HS3 is satisfied.

41.  I agree that the existence of a permanent resident friend who is willing to act as a guarantor is no sufficient reason to tilt the balance towards release on recognizance, especially when repatriation will be possible within about one week’s time.

42.  Balancing matters overall – though bearing in mind the detention has lasted 196 days – I conclude on the present materials that the Applicant has been detained, and will likely be further detained, only for a period that is reasonable in all the circumstances. HS2 is satisfied.

F.  Result

43.  The Applicant continues to be lawfully detained. The Applicant’s application for writ of habeas corpus is, therefore, dismissed.

44.  I make no order as to costs.