LAKHWINDER SINGH v. DIRECTOR OF IMMIGRATION

HCAL 1456/2023

[2023] HKCFI 2462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1456 OF 2023

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D E C I S I O N

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A.  Introduction

1.  On 4 August 2015, the Applicant was refused permission to land in Hong Kong. On 5 November 2015, a Removal Order was made against the Applicant under section 19(1)(b) of the Immigration Ordinance Cap 115 (“Ordinance”).

2.  Though for the most part released on recognizance, the Applicant’s recognizance ceased on 22 March 2023, since which date he has been detained in immigration detention under section 32(3A) of the Ordnance, pending his removal from Hong Kong. To date, that detention has lasted 191 days, or a little over 6 months.

3.  By application dated 18 August 2023, the Applicant seeks a writ of habeas corpus, namely to be released on recognizance. I gave directions for the Director to file an initial response, and to bring the matter to the hearing today.

4.  At the hearing, the Applicant appeared in person with the benefit of an Punjabi/English interpreter. The Director was represented by Ms Lynn Hui, Government Counsel, who signed the initial response.

5.  This is my Decision.

B.  Background

6.  The Applicant is an Indian national. He originally arrived in Hong Kong on 3 August 2015, on transit to Macau, but was refused permission to land in Macau and returned back to Hong Kong. As stated above, the Applicant was refused permission to land on 4 August 2015, and was detained pending removal, though he was subsequently released on recognizance on 14 February 2016.

7.  The Applicant had, on 4 August 2015, indicated his intention to make a claim for non-refoulement protection (“NRC”).

8.  On 12 October 2015, Director rejected the Applicant’s NRC. On 3 February 2016, the Applicant’s appeal/petition was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”). Subsequent revisiting of the question by reference to BOR 2 risk was also rejected by the Director, and the Board refused the Applicant’s late filing of an appeal/petition.

9.  On 22 February 2019, the Applicant filed an application for leave to apply for judicial review against the Director’s and the Board’s decisions (“JR Leave Application”). The Applicant failed to attend an oral hearing of his JR Leave Application on 20 January 2022, notwithstanding that he had sought an oral hearing. On 12 April 2022, the JR Leave Application was refused by the Court of First Instance (“CFI”).

10.  On 9 September 2022, the CFI dismissed the Applicant’s application for an extension of time to appeal against the refusal of his JR Leave Application. As Ms Hui has pointed out, in doing so the Court stated that no valid explanation for the substantial delay had been given by the Applicant, and his grounds of appeal and intended judicial review had no prospect of success. Challenging a decision without proper or good grounds of appeal, and which was bound to fail when it was already out of time, was an abuse of process.

11.  Nevertheless, on 21 September 2022, the Applicant applied to the Court of Appeal (“CA”) for extension of time to appeal against the refusal of the JR Leave Application. That summons was dismissed by the CA on 23 November 2022.

12.  With effect from 7 December 2022, the Government’s updated removal policy took effect. Under the updated removal policy, the Director may generally proceed with removal from Hong Kong of an unsubstantiated non-refoulement claimant with outstanding court proceedings, upon the CFI’s dismissal of the application for leave (including an application for leave for an extension of time) to apply for judicial review pertaining to the NRC, or – if leave has been granted and a judicial review has commenced – the CFI’s dismissal of that application.

13.  On 16 December 2022, the Applicant filed a notice of motion to apply for leave to appeal against the dismissal of that summons to the Court of Final Appeal (“CFA”). The notice of motion was dismissed on 30 January 2023.

14.  The Applicant then tried in the CFA. On 13 February 2023, the CFA issued a Rule 7 summons for the Applicant’s application for leave to appeal made to the CFA, stating that his application disclosed no reasonable grounds for leave to appeal, and asking him to show cause why the Appeal Committee should not dismiss the application.

15.  On 1 June 2023, the Director received the Applicant’s letter dated 25 May 2023 requesting to make a ‘Subsequent Claim’. In light of one of the submissions made orally by the Applicant today, it may be appropriate to give a little further detail as to the dealing with the Subsequent Claim request. First, the Director referred the matter to the Duty Lawyer Service (“DLS”) for publicly-funded legal assistance. Secondly, various requests were made of the Applicant/DLS in June and July 2023 to provide further evidence regarding his Subsequent Claim request. Thirdly, some information and materials were provided by the Applicant/DLS in June and July 2023. Fourthly, on 17 August 2023 the Director sought to arrange with DLS and interview with the Applicant on a date which turned out to be inconvenient for the DLS. Fifthly, an interview fixed for 8 September 2023 could not be conducted because of extreme weather conditions. Finally, on 20 September 2023, the interview was conducted with the Applicant in the presence of the assigned duty lawyer.

16.  The Subsequent Claim request was dismissed by the Director on 26 September 2023. The Director’s conclusion was that it was not accepted that there had been a significant change of circumstances since the Applicant’s previous claim was finally determined. Further, the Change, if any, when taken together with the materials previously submitted in support of the previous claim would not give the subsequent claim a realistic prospect of success.

17.  In the meantime, during the period of the present detention, the Applicant has expressed in numerous interviews his strong unwillingness to return to India. He has refused or failed to disclose the whereabouts of his passport (which is valid until 9 June 2025), and has also refused to complete formalities for his re-entry into India.

18.  The Director has liaised with, and chased, the Indian Consulate General seeking possible alternative means to issue the Applicant travel document, regardless of his uncooperative attitude.

19.  There have been reviews of the Applicant’s present detention, and the latest relevant internal minutes identified that the Applicant’s release on recognizance was not recommended on the grounds that: (1) the Applicant’s removal is going to be possible within a reasonable time; (2) the Applicant may abscond; (3) the applicant does not have close connection or fixed abode in Hong Kong; and (4) there are no other circumstances in favour of the applicant’s release.

C.  Applicable Principles

20.  The applicable principles 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.

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

D.  Applicant’s Submissions

22.  The Papers filed by the Applicant in support of the present habeas corpus application appear to show a fundamental misunderstanding as to the nature of the application.

23.  The supporting affirmation says merely (capitals in original) (sic):

AFFIRMATION FOR LEAVE TO APPLY FOR WRIT OF HABEAS CORPUS AGAINS THE ALL OFF MY CLAIMS DECISION MADE BY IMMIGRATION DIRECTOR SEEKING FOR BAIL

24.  In passing, I would note that I have seen the exact same wording (errors in spelling and all) copied in other habeas corpus applications. Further, the attached Exhibit A, comprising 68 pages, relates entirely to the Applicant’s NRC.

25.  However, as is trite and repeatedly stated, an application for habeas corpus is not the occasion for an applicant to rehearse or re-run his NRC, and the Court hearing that application is not concerned with the question as to whether the applicant should or should not be removed from Hong Kong.

26.  The relevant question on an application for writ of habeas corpus is whether the applicant has been lawfully detained to date, and whether he can continue to be lawfully detained in the reasonably foreseeable future, pending his removal from Hong Kong.

27.  At the hearing, the Applicant’s further submission is also included matters relevant to his NRC or Subsequent Claim – though he also addressed points more relevant to the current consideration. His submissions might be summarised as follows:

(1)  He has no criminal record, so it cannot be said that he poses any risk to society.

(2)  He accepts that between 2020 and 2022 he missed reporting recognizance three times. But that was due to Covid and he forgot. Whilst accepting the mistake, the applicant notes that each time he offered an apology and started reporting recognizance again.

(3)  On the other hand, there are numerous people who have failed to report, and yet if they have been released why could not he be released?

(4)  As to local ties, his passport is currently kept by a friend, but that friend is now in India and the Applicant does not know when he would return.

(5)  The friend lives in Tung Chung, and he does not know the full addressed. But the Applicant could provide a contact number if given access to his mobile phone, which is with his personal possessions held by the Immigration Department.

(6)  He has not cooperated in obtaining a replacement passport because he cannot go back to India, where his life is still in danger.

(7)  He does not accept the conclusions reached in the decision declining the Subsequent Claim request. It does not address all of the material put forward by him, and he asked the rhetorical question if it is necessary for him to be returned to India and imprisoned for a lengthy period or even to die before the Director will believe there is a real threat to him.

(8)  He also notes that his Subsequent Claim request was made in May 2023 and acknowledged in early June 2023, but nothing then happened until after he made this habeas corpus application on 18 August 2023, which appears to have triggered a flurry of action leading to a swift decision just 6 days after the interview.

28.  Other than those matters relating to the question as to whether or not the Applicant should be removed from Hong Kong. I will take those various submissions into account and give them the weight which seems to me to be appropriate to the circumstances. It is, however, worth noting at once that his categorisation of the activity following the raising of his Subsequent Claim request is simply factually inaccurate (see above).

E.  Whether Continued Detention is Lawful

29.  There can be no dispute that the detention of the Applicant is prima facie lawful. The Applicant is the subject of a valid and extant Removal Order, and under section 32(3A) of the Ordinance there is authority to detain such a person pending removal.

30.  Hence, the question is whether the overall circumstances of the Applicant’s detention have rendered it unreasonable, and hence unlawful.

31.  The starting point is to recognise the period of detention – here 191 days, or just over 6 months – against which all other factors are to be weighed and balanced. This is because the weight to be given to individual factors may vary as the period of detention lengthens.

32.  I can address the Hardial Singh principles as follows.

33.  Throughout the period of detention, the Director clearly has intended to remove the Applicant, and he has been detained solely for that purpose. HS1 is satisfied.

34.  I also accept that the Director has acted with reasonable diligence and expedition in seeking to effect the removal of the Applicant. This is evident from the continuing efforts to obtain a travel document for the Applicant, notwithstanding the Applicant’s refusal to cooperate in that regard. HS4 is satisfied.

35.  Indeed, it is that refusal to cooperate which has delayed the Applicant’s removal. He has failed or refused to produce his existing valid passport, and has refused to cooperate with the formalities in seeking to obtain any replacement travel document. The reason he gives for refusing to cooperate in obtaining a replacement strongly suggests that the same underlying reason is behind his failure or refusal to produce his existing passport. Further, had the Applicant produced his valid passport, there would be no need to seek a replacement. It is clear that the Applicant has deliberately sought to frustrate the process of his removal, and hence his release from detention. I give that significant weight in the balance, in accordance with section 32(4A)(d).

36.  I also accept Ms Hui’s submission that the Subsequent Claim request appears to be a self-inflicted attempt by the Applicant to provide an obstacle to delay his imminent removal. He has had eight years and ample opportunities to gather information for his NRC. Indeed, even after the Director had on his own initiative invited the Applicant to submit additional facts as might be relevant to his NRC on all applicable grounds, the Applicant failed to provide any further information at all, from that invitation in 2017 up to 2023. It is also fair to say that he has not pursued his NRC with any sense of diligence or urgency.

37.  There has also been a lack of diligence on the part of the Applicant even in pursuing his Subsequent Claim request, whereas the Director has dealt with the matter with diligence and expedition. It is perhaps ironic that the Applicant now seems to complain about the efficiency demonstrated in dealing with his Subsequent Claim request.

38.  In any event, now that the Subsequent Claim request has been finalised by its refusal, the only remaining obstacle to removal would be the retrieval or replacement of the Applicant’s travel document. Either retrieval or replacement could be readily achieved with the Applicant’s corporation. The Applicant cannot continue to complain about the length of detention, when he is well able to bring it to an early conclusion and to obtain his release (albeit in India).

39.  There is also a substantial risk of absconding. The Applicant failed to report recognizance three times between 2020 and 2022 (subsequently offering as explanation only that he was sick or had forgotten). He has no close connections in Hong Kong and has repeatedly expressed strong unwillingness to be removed from Hong Kong.

40.  I acknowledge that the Applicant has no criminal record in Hong Kong, which supports the inference that the risk of offending is low. That is properly to be given weight and taken into the balance. But I agree with Ms Hui that that does not provide good reason for the Applicant to be allowed to remain in Hong Kong and be released on recognizance. He is subject to a valid Removal Order, and he shall be removed in due course, even if the risk of offending is low.

41.  On the relevant circumstances and balancing all factors to date, the Applicant has been detained only for a period that is reasonable in all the circumstances. HS2 is satisfied.

42.  Further, it cannot be said that before the expiry of a reasonable period, it has become apparent that effecting the Applicant’s removal within such reasonable period could not be achieved. HS3 is satisfied.

43.  Overall, balancing the length of detention to date – here 191 days – and the likely foreseeable future period of detention, it seems to me that the detention of the Applicant has been, and will remain, lawful.

F.  Result

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