OUSMANE ISSA BOUBACAR v. DIRECTOR OF IMMIGRATION

HCAL 1574/2023

[2023] HKCFI 2602

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1574 OF 2023

________________________

________________

_________________

D E C I S I O N

_________________

A.  Introduction

1.  The Applicant is subject to a Removal Order made on 29 July 2014, under section 19(1)(b) of the Immigration Ordinance Cap 115 (“Ordinance”). Consideration is being given to making the Applicant also subject to a Deportation Order, under section 20 of the Ordinance. He has been held in immigration detention since 1 April 2023, hence for a period of 196 days to date.

2.  By application filed on 5 September 2023, the Applicant applied for a writ of habeas corpus, seeking his release from detention. I directed the Director of Immigration to file an initial response to the application, and so as to bring the matter on for hearing today.

3.  At the hearing, the Applicant has appeared in person, with the benefit of a French/English interpreter. The Director has been represented by Ms Kristy Tse, Government Counsel, who signed the initial response.

4.  This is my Decision.

B.  Adjournment Application

5.  At the beginning of the hearing, the Applicant asked for his application to be adjourned, on the basis that he had made an application for Legal Aid, and could not proceed until that application had been determined. In answer to my question, the Applicant stated that he had made the legal aid application on 11 October 2023, two days before today’s hearing. However, I think that neither the Director nor the Court has yet received any Memorandum of application for legal aid.

6.  The Applicant further explained that he would like to adjourn the hearing as the situation in his home country, Niger, was very unstable following a military coup on 26 July 2023, in which the Army had taken power. The Applicant said he would like to wait for the outcome of his legal aid application, to see if there is any way for him to continue staying in Hong Kong.

7.  After considering matters, I refused the adjournment – and, on the assumption that there has been a legal aid application relating to these proceedings which would have triggered an automatic 42-day stay of these proceedings – I lifted the legal aid stay. I did so for the following reasons:

(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: see section 22A(11).

(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 (see below), the Applicant is scheduled to be released from detention in 5 days’ time, on 18 October 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)  The counter risk of prejudice is 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.

C.  Background

C.1  Immigration Status

8.  The Applicant is a national of Niger, born on 19 September 1989. He entered Hong Kong as a visitor on 17 August 2013, with permission to stay until 31 August 2013. However, he overstayed in Hong Kong from 1 September 2013.

9.  On 25 September 2013, he surrendered to the Immigration Department, and was detained until his first release on recognizance on 13 November 2013.

10.  In the meantime, as stated, the Removal Order was made against the Applicant on 29 July 2014.

11.  During the current period of detention, inquiry has been made as to whether a Deportation Order ought to be made against the Applicant.

12.  A Deportation Order was made against the Applicant on 11 October 2023.

C.2  Criminal and Absconding Records

13.  The Applicant failed to report recognizance from 2 January 2014, until he was arrested by the Police on 19 December 2014. He was then briefly detained until his release on recognizance on 22 January 2015.

14.  The Applicant was arrested on 12 April 2015, and later convicted on 17 June 2015, for the offence of ‘trafficking in dangerous drugs’. He was sentenced to 21 months’ imprisonment, reduced on appeal to 18 months’ imprisonment. After discharge from that sentence, the Applicant was detained from 11 April 2016 to 21 November 2016, when he was again released on recognizance.

15.  On 13 July 2019, the Applicant was convicted of ‘possession of dangerous drug’ and fined $300. On 29 September 2020, he was again convicted of ‘possession of dangerous drug’ and sentenced to 4 weeks’ imprisonment suspended for 12 months. On 31 May 2021, he was convicted of ‘criminal damage’ and sentenced to 2 weeks” imprisonment and compensation of $2,500 (suspended sentence not activated). On 17 March 2023, the Applicant was convicted of ‘possession of dangerous drug’ and sentenced to 4 months’ imprisonment.

16.  It was after completing that sentence that the current period of detention began on 1 April 2023.

17.  The Applicant also failed to report recognizance on several occasions, for periods of several months. As an example, the Applicant absconded from 12 January 2022 until his arrest by the Police on 1 December 2022. He jumped police bail in May 2019, until his arrest by the Police two months later. He also jumped court bail in February 2021, until his arrest some three months later.

C.3  Non-refoulement Claim (“NRC”)

18.  The Applicant raised a NRC on 30 December 2014. It was rejected by the Director on 24 March 2016. On 5 July 2016, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) refused the Applicant’s application for late filing of his appeal/petition.

19.  On 21 September 2016, the Applicant was invited to submit additional information as to BOR2 risk. On 10 January 2017, the Applicant’s NRC under BOR2 risk was refused by the Director.

20.  On 31 July 2023, the Applicant submitted two written requests for a Subsequent Claim, which was rejected by the Director on 22 September 2023.

C.4  Current Period of Detention

21.  The Applicant was detained from 1 April 2023 under section 32(3A) of the Ordinance.

22.  From 27 September 2023, the Applicant has been detained under section 29(1) of the Ordinance, pending inquiry as to whether a Deportation Order ought to be made against him.

23.  During the period of detention, reviews of detention have been conducted. On the last review, the Director considered that the Applicant should continue to be detained pending his removal on the grounds that: (1) his removal is going to be possible within a reasonable time; (2) he poses, or is likely to pose, a threat or security risk to the community; (3) he may abscond and/or reoffend; (4) he does not have close connection or fixed abode in Hong Kong; and (5) there are no other circumstances in favour of his release.

C.5  Efforts at Removal

24.  Since January 2016, the Director has been taking active steps liaising with the local Consulate General of Niger to seek assistance for issuing of a travel document for the Applicant.

25.  The most recent liaison included a letter and email in March and July 2023, seeking assistance for the issuance of the Applicant’s travel document and confirmation of his re-entry to Niger.

26.  On 28 July 2023, the Applicant’s re-entry was assured by the Consulate. On 29 September 2023, the Consulate issued the Applicant’s travel permit, with validity until 20 October 2023.

27.  A repatriation flight has been arranged for the Applicant on 18 October 2023.

D.  Applicable Principles

28.  The principles applicable on an application for writ of habeas corpus in cases with the present context are well-established – and I have touched upon them above.

29.  Those principles have been summarized by the Court of Appeal in its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781. 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 any individual case.

30.  I bear in mind that the burden is on the respondent to an application for writ of habeas corpus to justify the continued lawfulness of the detention.

E.  Applicant’s Submissions

31.  The Applicant’s hand-written grounds for his application, as provided with the application itself, might be said to be in relatively standard form, essentially copied word for word from numerous previous similar applications. Other than very general statements of principle or boilerplate claims, nothing specific to the Applicant is set out. The general points made can be summarised as follows:

(1)  There is insufficient risk justifying the period of detention.

(2)  No proper consideration has been given to the period within which removal can properly be affected, and whether that constitutes a reasonable time.

(3)  There has been a failure to take into account and give weight to the effect of detention on the detainee and his family.

(4)  Without any triad background or connection, the Applicant cannot be said to be likely to pose a security risk to the community.

(5)  The Director has been unacceptably slow in dealing with the Applicant’s enquiries about the deprivation of his liberty.

(6)  Arguing about risks of absconding by reference to what “may” happen is not factual.

(7)  There are outstanding legal proceedings, and there may be still further proceedings to attempt.

(8)  The applicant is in poor health, and needs to be at liberty to receive prompt medical attention.

(9)  The conditions of detention of those which are applicable to convicted prisoners, causing the Applicant trauma and claustrophobia.

32.  At the hearing, the Applicant said that he had no further submissions to make, as he had already explained what he needed to say.

33.  I take all these points into account, and give them the weight that seems to me to be appropriate in the balancing exercise below.

F.  Whether Detention is Unlawful

34.  The Removal Order made against the Applicant is valid and extant. Further, the offences committed by the Applicant deportable offences. Therefore, there has been clear prima facie lawful authority to detain the Applicant throughout the current period of detention, under the sections of the Ordnance identified above.

35.  Therefore, the question arises as to whether the overall circumstances have rendered a previously lawful detention now to be unlawful. This is to be assessed by reference to the Hardial Singh principles, which assessment I can perform below.

36.  The starting point is to bear firmly in mind the period of detention to date – here 196 days, or about 6½ months – against which all other factors are to be weighed and balanced.

37.  I accept that the Director intends to remove the Applicant from Hong Kong at the earliest possible opportunity, and has used the power to detain only for that purpose. HS1 is satisfied.

38.  I also accept that the Director has been acting with reasonable diligence and expedition to effect the Applicant’s removal from Hong Kong. This is evidenced by the liaison with the Consulate to confirm the Applicant’s identity, and for the Applicant to obtain a travel document to facilitate his re-entry. Now that the travel document has been obtained, the Director has made arrangements for a repatriation flight on 18 October 2023, within the validity period of the travel document. HS4 is satisfied.

39.  The fact that the Director has not simply removed the Applicant upon receipt of the travel document, but instead has initiated deportation proceedings in parallel, has caused me some pause. However, because of the parallel nature of the deportation proceedings, I do not think that they have detracted from the diligence and expedition with which the Director has otherwise been acting.

40.  I note Ms Tse’s submission that by seeking to raise the Subsequent Claim on 31 July 2023 – during the current period of detention, 6 years after the Director’s last refusal of his NRC, but immediately after his right of re-entry was assured by his Consulate on 28 July 2023 – the Applicant has belatedly attempted to provide an obstacle to his removal. Therefore, if any delay in his removal (and hence release from detention) was caused, that was self-inflicted. But I also recognise the timing of the attempt to raise a Subsequent Claim was shortly after the date when the Applicant says there was a military coup in Niger.

41.  As to the paramount factor of the risk of absconding, there seems to me to be a clear and substantial risk. The Applicant has frequently absconded in the past, and has also jumped both police and court bail. He has committed offences whilst on recognizance, thereby showing little regard for the conditions of his release. Further, the Applicant has made known his unwillingness to return to Niger, and I accept Ms Tse’s submission that, now that he is faced with imminent removal, the Applicant may prefer to abscond rather than be repatriated. If the Applicant were to be released but then abscond, that would defeat the very purpose of the detention and the ability to give effect to the Removal Order.

42.  I also accept that the Applicant’s previous criminal record identifies some risk of reoffending. Were he to reoffend and face a period of imprisonment, that would also delay his removal from Hong Kong.

43.  Most importantly, removal of the Applicant from Hong Kong is now imminent – just 5 days away.

44.  As to the Applicant’s claimed medical conditions, I do not think there is any reason to think that the Applicant would not receive appropriate medical care within the detention facility, or if necessary be escorted to attend medical appointments with the Hospital Authority. I also note that the Applicant has not made known to the Director any claimed real adverse effects of the detention on him.

45.  Balancing all the various factors against the length of detention to date (196 days), and the likely foreseeable future period of detention (a real-time scale of 5 days), I conclude that the Applicant has been and will be detained only for a period which is reasonable in all the circumstances. HS2 and HS3 are satisfied.

46.  The detention has been, and remains, lawful.

G.  Result

47.  The Applicant’s application for writ of habeas corpus is dismissed, with no order as to costs.