RASUL GOLAM v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 799/2023

[2023] HKCFI 1507

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 799 OF 2023

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REASONS FOR JUDGMENT

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A.  Introduction

1.  The Applicant is the subject of a Deportation Order (“the DO”) made on 28 January 2021. He has been held in immigration detention since 26 January 2021 under s32(3) of the Immigration Ordinance, Cap 115 (“s32(3)”) pending his removal under that order. He is scheduled to be removed on 31 May 2023.

2.  On 1 November 2022, the Applicant applied for a writ of habeas corpus ad subjiciendum (“the First Application”). That application was dismissed on 19 December by Hon Coleman J under HCAL 1185/2022. This is the Applicant’s second application for such a writ (“the Present Application”). At the time of the First Application, the Applicant had been detained for a period of 693 days. He has now served an additional 162 days since the First Application was dismissed, making a total period of detention of 855 days.

B.  Factual Circumstances

B.1  Immigration Status

3.  The Applicant is an Indian national born on 6 May 1984 and is single. On 12 July 2014, he arrived in Hong Kong on the strength of his Indian passport and was permitted to remain in Hong Kong as a visitor until 26 July 2014. He did not depart and has overstayed since 27 July 2014. He was intercepted by the Police for being a suspected over-stayer and was referred to the Department of Immigration on 4 August 2014. A Removal Order was made against the Applicant pursuant to section 19(1)(b) of the Immigration Ordinance, Cap 115 (“the Ordinance”) on 26 August 2014. That Removal Order was not carried into effect because the Applicant had already raised a non-refoulement claim (“NRC”) on 5 August 2014. He was thereafter released upon recognizance on 10 September 2014.

4.  On 28 July 2017, the Applicant was arrested on suspicion of trafficking in a dangerous drug. He was convicted on 15 June 2018 and was sentenced to 5 years and 3 months’ imprisonment. The Applicant’s application for leave to appeal against his sentence was refused by the Court of Appeal on 6 November 2018.

5.  Upon discharge from prison on 26 January 2021, the Applicant was administratively detained under s29(1) of the Ordinance for inquiry by the Director of Immigration (“the Director”) as to whether he ought to be deported. A Deportation Order was made against him on 28 January 2021, pursuant to s20 of the Ordinance. The Applicant has been held in detention since that date, under section 32(3) of the Ordinance, pending removal under the DO. That DO was not carried out promptly at that time owing to the fact that the Applicant had a current outstanding application for Judicial review (“JR”) and would not cooperate with the Director by voluntarily renewing his expired Indian passport.

B.2  Non-refoulement Claim and Related Proceedings

6.  The Applicant submitted his written representation of intention to make a NRC on 5 August 2014. The formal NRC was eventually submitted but was rejected by the Director on 21 December 2016. On 10 August 2018, the Torture Claims Appeal Board (“TCAB”) dismissed the Applicant’s appeal against the Director’s refusal of his NRC.

7.  On 25 February 2021, the Applicant applied under HCAL 230/2021 for leave to apply for JR against the TCAB’s decision. He was significantly out of time but he had been serving a sentence of imprisonment in the interim. On 10 May 2022, the CFI refused the Applicant’s leave application on the basis that his application had inter alia no prospect of success. On 7 June 2022, the Applicant applied to the CFI for an extension of time to appeal against the refusal of his leave application. That was refused on 14 July 2022, for the same reason. On 24 October 2022, the Applicant filed a summons in CAMP 439/2022 with the Court of Appeal seeking an extension of time for appealing against the CFI decision dated 14 July 2022. That summons is yet to be determined.

B.3  Detention and Reviews

8.  The original period of detention commenced on 26 January 2021 upon completion of his sentence of imprisonment. Initially, the Applicant was administratively detained under s29(1) of the Ordinance for inquiry as to whether he ought to be deported. The DO was made on 28 January 2021. Since that date the Applicant has been detained under s32(3) of the Ordinance. During that detention, and prior to the hearing before Coleman J on 19 December 2022, the Applicant had repeatedly shown an unwillingness to return to his home country during in-person or telephone interviews on nearly 20 occasions including his unwillingness to renew his passport. Since 19 December 2022, the Applicant has continued to be wholly uncooperative in progressing the documentation required by the Indian Consulate (“the Consulate”) to give effect to his DO. In the event, and after much negotiation, the Consulate relented and agreed to process the re-entry application without the Applicant’s cooperation. This was in some part because his identity was already known, which is often not the case.

9.  There have been various reviews of detention since 28 January 2021. The last Notice of Review was served on the Applicant on 16 May 2023, following service of Notice of Removal on 10 May 2023. The Present Application was dated on 18 May 2023. The latest review included consideration of the following factors:

(1)  The Applicant’s removal is imminent.

(2)  Under the updated removal policy, the outstanding appeal proceedings under CAMP 439/2022 do not form an impediment to deportation, and, in any event, have been found by the CFI be without any prospect of success.

(3)  The Applicant was convicted of trafficking in dangerous drugs, which is a serious offence, whilst he was released upon recognizance. As a consequence, the Applicant poses, or is likely to pose, a threat to the local community.

(4)  The Applicant does not have a fixed abode or close familial connection in Hong Kong, although his friend (who is a Hong Kong permanent resident) is willing to be his guarantor.

(5)  The Applicant is likely to abscond and/or reoffend.

(6)  The Applicant has continuously sought to prevent or delay his removal by refusing to be cooperative and to complete the formalities for travel documents, whilst progressing an unmeritorious claim.

B.4  Lack of Cooperation

10.  The Applicant’s Indian passport expired on 24 January 2022, whilst he was in detention. Thereafter, he has been uncooperative in complying with the necessary formalities to obtain a valid travel document from the Indian Consulate General to facilitate his deportation.

11.  The Consulate did conduct an interview with the Applicant on 25 November 2022, prior to the hearing of the First Application, but the Applicant refused to complete the travel document application form. In January 2023, the Applicant was interviewed on 2 separate occasions during which he expressed an unwillingness to return to India and refused to cooperate to complete the re-entry formalities. This was relayed to the Consulate, which maintained that all necessary application forms would be required to be completed. He was interviewed again on 10 February, 17 & 27 March, 10 & 29 May but still refused to complete the forms or attend an interview with the Consulate. This was re-iterated during a further interview at the end of March when the Applicant made it clear he would not return to India. Throughout this process and during the following months, the Consulate was pressed to change its stance and ultimately agreed to process an Emergency Travel Document (“ETD”) without the assistance and cooperation of the Applicant. That ETD was made available on 3 May 2023, whereupon a flight was booked for his removal from Hong Kong on 31 May 2023.

C.  The Applicant’s Submissions

12.  In his affirmation/written submissions filed in support of this application, the Applicant stated the grounds of his application as being that his continued detention has become unreasonable and therefore unlawful, the detention is a breach of the principle of liberty, and a breach of the Hardial Singh principles. This follows the same format as considered by Hon Coleman J in HCAL 1185/2022.

13.  The Applicant repeated his arguments under HCAL 1185/2022. He was asked to concentrate his submissions upon the period from 20 December 2023 to date. He maintained that no attempt was made at all to arrange his removal from Hong Kong after December 2023. When referred to the extensive schedule provided by the Respondents, which charts the chronology of events between then and now, the Applicant could not remember the interviews in which he refused to complete the application forms but agreed he had at all times refused to return to India. He did not accept he had refused to cooperate. He maintained the case officer did nothing and did not ask him to complete any forms. Additionally, he submitted that his application for leave to appeal directly to the Court of Appeal under CAMP 439/2022 was still outstanding and he wished to remain in order to continue medical treatment for a urinary tract infection.

D.  Applicable Principles

14.  The central question before the Court today is whether there is and continues to be lawful authority for detention. The burden is upon the Respondents to show that is the case. An originally lawful detention may become unlawful if it continues for an unreasonable time. Each case will be fact sensitive. In its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781, the Court of Appeal considered the principles to be applied in a case such as this.

15.  That 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 increases 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.

E. Whether Detention Has Become Unlawful/ Should the Applicant be Released?

16.  The Applicant’s detention up to 19 December 2022 was the subject of a considered judgment under HCAL 1185/2022. Coleman J found the Director exercised lawful authority to detain the Applicant under s29(1) and thereafter s32(3). That remained the case after 20 December 2022. The question arises now, as it did then, whether the overall circumstances pertaining thereafter have rendered continued detention unreasonable, and hence unlawful.

17.  Was the Applicant’s continued detention for a further 162 days reasonable in all the circumstances of the case? The chronology of intervening events clearly indicates that the Secretary/Director intended to deport the Applicant and made every effort to do so after 19 December 2022. Several interviews were held with the Applicant between January and May of this year, to urge him to complete the relevant documentation, which he refused. He was clearly aware, at that stage, he would not be deported without a valid travel document. Parallel conversations were had with the Consulate to seek another means of issuing an ETD but the Consulate would not assist. Further interviews were held with the Applicant and negotiations maintained with the Consulate until, finally, the Consulate acquiesced in the face of the total lack of cooperation of the Applicant. No criticism can be laid at the door of the Secretary/Director. HS1 & 2 are satisfied.

18.  In considering the lengthy period of detention, I have taken into consideration the principles outlined in Harjang Singh above and also the actions of the Applicant throughout the whole period of his detention, but, in particular, during the further 162 days of his detention.

19.  The Applicant arrived in Hong Kong on the strength of his own passport, which allowed him to remain until 26 July 2014. He overstayed and was referred to the Department of Immigration on 4 August 2014, allowing the Director to obtain a Removal Order (“RO”). However, the Applicant made a non-refoulement claim (“NRC”) under the UNHCR on 5 August 2014 and action upon the RO was not taken as a result of his change of status. He was released upon recognizance pending his NRC. The Director rejected his NRC on 21 December 2016. Prior to any appeal to the TCAB, the Applicant committed the offence of trafficking in a dangerous drug in 2017 and was convicted on 15 June 2018 to 5 years 3 months’ imprisonment. During that term, his appeal was heard by the TCAB on 10 August 2018 and was dismissed. He was not discharged from prison until January 2021 whereupon he was placed under administrative detention to consider whether he should be the subject of a DO. That order was obtained on 28 January 2021. On 25 February 2021, the Applicant applied for leave to judicially review the Decision of the TCAB. In 2021, that would have also placed a procedural stay on the DO, it would not do so now. The leave application was not dealt with until 10 May 2022 under HCAL 230/2021. It was dealt with on the merits and was rejected inter alia as having no prospect of success. On 7 June 2022, the Applicant sought an extension of time to appeal that Decision to the Court of Appeal, being some 14 days out of time. That was refused on 14 July 2022. The Applicant had 14 days to appeal that Decision but took until 24 October 2022 to do so. That matter has not yet been dealt with. The Applicant has not progressed his claim diligently.

20.  The Secretary/Director have acted with diligence and expedition to effect removal, including by pursuing alternate means to obtain a travel document for the Applicant, and by asking the Courts to accord priority to dealing with the Applicant’s JR applications. HS3 & 4 are satisfied.

21.  There is a real and significant risk that the Applicant may re-offend if released on his own recognizance. Trafficking in dangerous drugs is a serious offence with the potential to do substantial harm to the community. There is an even greater risk that the Applicant would fail to present himself for deportation given his refusal to return to India, which he re-iterated before the Court today. If the Applicant were to be released on recognizance and then absconded, that would frustrate the purpose of the Deportation Order. Little comfort can be gained from the Applicant’s suggestion he can provide a guarantor who is a permanent resident given that the Applicant said he had no close relations in Hong Kong and the guarantor stated he was the Applicant’s cousin.

22.  Looking at matters overall, and despite the lengthy period of detention to date, I am satisfied that the detention continues to be lawful. There is a significant risk of further offending and of failing to present himself for deportation. The Applicant will be detained until his DO can be put into effect, which I anticipate will be on 31 May 2023, but I make it clear that, so long as a date for departure is imminent, I would continue the detention in any event.

F.  Post Script - The Updated Removal Policy

23.  The Government recently updated the removal policy covering cases such as this. It took effect as from 7 December 2022. Under the updated removal policy, the Director may generally proceed with removal from Hong Kong of an unsubstantiated NRC claimant upon either (a) the CFI’s dismissal of an application for leave to apply for judicial review (including an occasion for an extension of time to make an application for leave) or (b) if leave has been granted for a judicial review, upon the CFI’s dismissal of that application for judicial review. Therefore, subject to any Court order, removal operations may generally proceed irrespective of:

(1)  whether the claimant will appeal or has already filed a notice of appeal to the higher court(s) against the dismissal decision by the CFI, unless the higher court(s) has(have) reversed the CFI’s dismissal decision on the respective JR proceedings before the Director’s execution of the removal operation; and

(2)  whether the claimant will initiate or has already initiated other legal proceedings pertaining to his or her removal, unless there are court rulings against the removal operations before the same are executed.

24.  There appears to be no ground for allowing the Applicant to remain in order to process his appeal. Nevertheless, in the interest of justice, I have considered the original NRC and the reasons given on review carried out by the CFI. The original claim was without merit as were the Applicant’s grounds (or lack thereof) for JR and appeal. Given the judge’s comments, I anticipate that the matter will be dealt with on the papers and will not require the attendance of the Applicant.

G.  Result

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