THAPA KHIMA v. DIRECTOR OF IMMIGRATION

HCAL 1533/2023

[2023] HKCFI 2520

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1533 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant has been held in immigration detention since 3 June 2023, following release from prison after completion of a prison sentence for overstaying. The detention to date has been for a period of 126 days, or around 4 months. Now, by application dated 30 August 2023, the Applicant seeks her release from detention by writ of habeas corpus.

2.  I gave directions for an initial response from the Director of immigration, and to bring the matter to today’s hearing. At the hearing, the Applicant has been represented by Mr Romain Pierre Levaire of Counsel. The Director has been represented by Ms Angel Zhi, Government Counsel, who signed the initial response.

3.  As will be seen below, Mr Levaire has succinctly argued that since the filing of the initial response, and the developments identified in it, there has been a shift in attitude on the part of the Applicant. That has led to a suggestion to resolve matters upon the Applicant’s undertaking. But that has not been acceptable to the Director, and it is necessary for me to decide the matter.

4.  This is my Decision.

B.  Background

B.1  Immigration Status

5.  The Applicant is a Nepalese national.

6.  The Applicant arrived in Hong Kong on 12 September 2014, and was given permission to remain as a visitor until 19 September 2014. However, she did not depart as required, and she has overstayed since 20 September 2014.

7.  The Applicant was arrested by the Police on 8 March 2015, suspected of being an overstayer, and referred to the Immigration Department (“ImmD”). She was released on recognizance on 13 April 2015.

8.  But a Removal Order had been issued against the Applicant on 2 April 2015, pursuant to section 19(1)(b) of the Immigration Ordinance Cap 115 (“Ordinance”). The Removal Order remains valid and extant.

9.  Whilst released on recognizance, the Applicant committed the offence of ‘taking employment while being a person in respect of whom a removal order is in force’. On 6 August 2022, she was convicted of that offence and sentenced to 15 months’ imprisonment. It was upon discharge from that sentence that the present immigration detention commenced.

10.  On 8 June 2023, a Deportation Order was issued against the Applicant, pursuant to section 20(1)(a) of the Ordinance. The Deportation Order remains valid and extant.

B.2  Non-refoulement Claim (“NRC”)

11.  Upon being arrested for overstaying, the Applicant lodged a NRC on 10 March 2015. The NRC was rejected by the Director on 20 July 2018.

12.  On 16 May 2019, the Applicant’s appeal/petition from the Director’s decision was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”).

13.  On 10 June 2019, the Applicant applied for leave to apply for judicial review against the Board’s decision. After the commencement of the present period of detention, and a request made to the Court to accord priority to it, the application for leave to apply for judicial review was dealt with by the Court of First Instance (“CFI”) on 25 August 2023. The application was dismissed.

14.  The CFI’s decision means that there is no longer any legal impediment to removal of the Applicant, under the updated removal policy (which came into effect on 7 December 2022).

B.3  Efforts at Removal of Applicant

15.  When interviewed on 29 June 2023, the Applicant expressed unwillingness to return to Nepal. But a re-entry application form and photo were secured from her, and she expressed willingness to attend an interview with the Nepalese Consulate.

16.  Her passport expired on 26 August 2023. When the Applicant was again interviewed, on 31 August 2023, she expressed unwillingness to return and claimed that she would not cooperate with any removal arrangement.

17.  On 4 September 2023, the Director requested the Consulate to issue a replacement travel document for the Applicant’s repatriation. On 11 September 2023, the Consulate issued a one-way travel document to the Applicant, with validity until 10 December 2023.

18.  On 22 September 2023, a repatriation flight was organised for the Applicant. The flight is scheduled for 13 October 2023, i.e. next week.

19.  It is relevant to note that, until very recently, the Applicant continued to express unwillingness to be returned to her home country.

B.4  Present Detention

20.  As stated, the present period of detention commenced on 3 June 2023. The Applicant was originally detained under section 29(1) of the Ordinance for inquiry as to whether she ought to be deported.

21.  On 8 June 2023, the PAS for S ordered that the Deportation Order be made against the Applicant, and authorised her detention under section 32(3) of the Ordinance.

22.  Her solicitors have requested release of the Applicant on recognizance, later mentioning their standing instructions to apply for a writ of habeas corpus. However, reviews of detention have considered that there are grounds for continued detention, and on 21 September 2023, the Director decided that this was not a case warranting release of the Applicant on recognizance.

23.  I note that taken into account as part of the assessment was the fact that the Applicant’s boyfriend, who is a Hong Kong permanent resident, has expressed willingness to act as guarantor for the Applicant’s release.

C.  Applicable Principles

24.  The principles applicable in the present context are well established. They 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.

25.  The burden is on the respondent to an application for habeas corpus to justify the continued detention as remaining lawful.

D.  Applicant’s Submissions

26.  In her affirmation filed in support of this application, the Applicant set out the background of her arrival in Hong Kong and the progress of her NRC. The affirmation is dated 30 August 2023, and the Applicant appears to have been unaware that her application for leave to apply for judicial review had been dismissed by the CFI on 25 August 2023. In addition, the Applicant stated that:

(1)  She has been in immigration custody for a period of time which is unreasonable in all the circumstances.

(2)  She was not aware of any concrete action taken by the Director with a view to removing her from Hong Kong, and in any event she does not consent to being removed, which therefore cannot occur in the foreseeable future.

(3)  Her solicitors’ requests for reasons why she continues to be detained have not received clear answers from the Director.

(4)  With the exception of the issue of overstaying, she has not caused any trouble since her arrival in Hong Kong, and has kept a clear record. There is no reasonable reason to believe that would not continue upon her release from detention on recognizance.

(5)  She has also never failed to report when required to in accordance with the conditions of her recognizance, and there is also no reason to believe that would not continue upon her release from detention on recognizance.

(6)  Even if the detention is regarded as lawful in all the circumstances, the Director’s decision to keep her in such detention is so unreasonable that no reasonable person acting reasonably could have made it. Hence, that decision should be quashed.

27.  Since the making of that affirmation, and with the benefit of the contents of the initial response filed for the Director, the Applicant has learned of the dismissal of her application for leave to apply for judicial review, the issuing of the travel document for her, and the booking of the repatriation flight scheduled for 13 October 2023.

28.  In that light, at the hearing, Mr Levaire explained that he had been able to take updated instructions from the Applicant. With the benefit of those instructions, he made the following submissions:

(1)  It might have been helpful had the Applicant learned of the various matters before the initial response, but be that as it may the updated facts are now understood by the Applicant.

(2)  Whilst the Applicant has indeed, until recently, had a history of expressing her unwillingness to return to her home country, that position has changed.

(3)  The Applicant now recognises and understands her fate, namely that the orders for removal and deportation will be effected, by the Applicant’s repatriation on the flight booked for 13 October 2023.

(4)  The Applicant accepts that HS1 is satisfied.

(5)  The Applicant accepts that HS4 is satisfied.

(6)  In light of the recent developments, HS3 has also been resolved.

(7)  The Applicant has promised her Counsel and will formally undertake to the Court that, if released today on recognizance, she would travel by herself to the airport on 13 October 2023 and take the repatriation flight.

(8)  The Applicant wishes to spend her last week in Hong Kong with her boyfriend, who was present in Court, and who has expressed willingness to be her guarantor/surety.

(9)  The Applicant has no history of violence, and presents no threat to security in Hong Kong.

(10)  The Applicant’s only criminal offence is one which is unlikely to recur within the next 7 days.

(11)  The issues left to the Court are the HS2 question of reasonableness of detention, and whether to accept the formal undertaking from the Applicant that she would herself go to the airport for the repatriation flight on 13 October 2023.

29.  I give credit to the Applicant for the apparent change in her stance, as reflected in her instructions to Mr Levaire. I take all these various matters into account, and give them such waiter seems to me to be appropriate.

E.  Whether Detention is Lawful or Unlawful

30.  Throughout the period of detention, there has been clear prima facie lawful authority to detain the Applicant, first under section 29(1) and then under section 32(3) of the Ordinance. Hence, the question arises as to whether the detention has become unreasonable in all the circumstances, and hence unlawful.

31.  The starting point is that the Applicant has been detained to date for a period of 126 days, or about four months, with the period set to be extended for a further 7 days – and it against that period that the other factors are to be weighed and balanced. That exercise can be addressed by reference to the Hardial Singh principles as follows.

32.  Despite the fact that there is no dispute that at least HS1, HS3 and HS4 are satisfied, I think it appropriate on this application for the Court itself to consider the position.

33.  I agree that the Director intends to remove the Applicant at the earliest possible opportunity, and that the power to detain her has been used only for such purposes. The period of detention began with consideration as to whether or not to make a deportation order, and one was subsequently made. Deportation is now imminent following the provision to the Applicant of a travel document permitting her repatriation on the flight arranged for 13 October 2023. HS1 is indeed satisfied.

34.  I also accept that the Director has throughout acted with reasonable diligence and expedition to effect the Applicant’s removal as soon as possible. In addition to the steps seeking to secure a travel document for the Applicant – see above – the Director (via the DOJ) also requested the Court to accord priority to the Applicant’s application for leave to apply for judicial review. Once the travel document was secured, the Director swiftly made arrangements for the repatriation of the Applicant on 13 October 2023. HS4 is also satisfied.

35.  Where there is a clear time frame within which the removal of the Applicant can be effected, namely 7 days from now, HS3 is satisfied.

36.  I can turn to consider the risk of the Applicant re-offending. The offence for which she was convicted – taking employment while being a person in respect of whom a removal order is in force – was committed whilst she was released on recognizance. This tends to identify that the Applicant is prepared to breach the terms of her release. Particularly against the current timetable for deportation, and as Mr Levaire submitted, it might be said that the risk of re-offending is low. But any offence which might lead to conviction and imprisonment might delay the intended deportation.

37.  I also accept that the Applicant’s repeated unwillingness to be removed and her at best equivocal cooperation in the process necessary for her removal identifies that the risk of absconding is not low. I take into account, and give some weight to, the Applicant’s statement that she has changed her stance. But there is still force in Ms Zhi’s submission that (a) the previous repeated unwillingness to being removed (apparently even to the extent of predicting continued unwillingness even if today’s application were to be dismissed), and (b) some failure to cooperate in the process of obtaining a travel document, identify some real risk of absconding. Obviously, were the Applicant to choose to abscond rather than go to the airport for repatriation on 13 October 2023, that would frustrate the purpose for which the power of detention is given, as well as frustrating the intended effect of the Deportation Order made against her.

38.  Though I take it into account, I do not think the fact that the Applicant’s boyfriend has expressed willingness to act as a guarantor if released on recognizance is very weighty in the balancing exercise.

39.  Overall, weighing and balancing all the relevant factors against the 126-day period of detention to date, and the, it seems to me that the detention of the Applicant has been and will remain reasonable in all the circumstances. HS2 is satisfied.

40.  Essentially, that leaves the question as to whether or not the Court should accept the undertaking now offered by the Applicant – or whether the offer of that undertaking changes the picture as to the continued lawfulness of detention over the coming 7 days. Against the previous at least equivocation as to willingness to return and cooperation in the process, I do not think the undertaking offered alters the conclusion on continued lawfulness of detention over the now 7-day continuation of the detention period.

41.  On that basis, and on the final analysis, it seems to me that the undertaking is essentially offered to seek release from detention on compassionate grounds. But if, as I find, detention has been and until 13 October 2023 would continue to be lawful, any question of release on compassionate grounds seems to me to be a question not for the Court, but for the Director. The Director has made clear his stance, through Ms Zhi’s submissions.

42.  Therefore, and not without some hesitation, I refuse to accept the undertaking as the way to resolve matters.

43.  Lastly, in so far as it might be thought that the content of the Applicant’s affirmation sought to raise a judicial review challenge to the decision to detain her, the above consideration identifies that there are no reasonably arguable public law grounds for interfering with the decision. Of course, Mr Levaire did not pursue this point in any event.

F.  Result

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