MUNIYAPPAN THANGAM v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 2300/2023

[2024] HKCFI 437

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2300 OF 2023

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J U D G M E N T

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A.  Application

1.  By an ex parte application dated 20 December 2023, the Applicant applies for a writ of habeas corpus, pursuant to Order 54 rule 1 of the Rules of the High Court (Cap 4A). The Applicant thereby seeks release from the custody of the Correctional Services Department.

B.  Background of Applicant

2.  This is the Applicant’s 2^nd application for habeas corpus. The 1^st application for habeas corpus under HCAL 1292/2023 (the “1^st Application”) was heard and dismissed by Coleman J on 11 August 2023[1]. I gratefully adopt the background of the Applicant, history of the Applicant’s non-refoulement claim, the Applicant’s record of convictions, history of abscondence and steps that had been taken towards the Applicant’s removal as set out in paragraph 5 – 25 in His Lordship’s judgment.

3.  From the dismissal of the 1^st Application up to the date of the hearing, the Applicant has been detained for a further 178 days, bringing the total days of detention to 406 days.

C.  Steps Towards Removal After the Dismissal of the 1^st Application

4.  After the dismissal of the 1^st Application, the Applicant had initially requested for early repatriation to India. Thereafter, a phone interview was arranged with the Applicant on 17 August 2023, during which he again expressed unwillingness to return to India and requested to be released on recognizance.

5.  The Immigration Department therefore through an email dated 29 September 2023 requested for the Applicant’s case to be given priority. This was repeated on 9 October 2023, 25 October 2023 and 28 December 2023.

6.  The Applicant continued to be un-cooperative during an interview on 5 October 2023. He refused to complete the re-entry form and to attend interview with the Indian Consulate for issuance of replacement travel document.

7.  An interview with the Indian Consulate was originally scheduled for 31 October 2023 but the Applicant refused to attend the interview. This was repeated at another interview originally scheduled for 12 January 2024.

8.  The Applicant repeatedly refused to be removed on 9 November 2023, 14 December 2023 and maintained his stance throughout his detention subsequently.

9.  The Immigration Department had asked the Indian Consulate on 24 November 2023 for alternative means for the issuance of the travel document in view of the Applicant’s refusal to cooperate. The Indian Consulate replied that a duly completed application form, passport photos and an in-person interview at the Indian Consulate are necessary pre-requisites for the issuance of the replacement travel document.

10.  It can thus be seen that the Immigration Department has all along taken a proactive stance in effecting the Applicant’s removal, and the only reason why the Applicant cannot be deported is his refusal to co-operate.

D.  Applicable Principles

11.  In the Court of Appeal’s Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security and Another [2022] HKCA 781, the principles to be applied in an application for habeas corpus were set out in summary in §164.

12.  In considering the present application, I have adopted the said principles and have borne in mind that (1) the burden is on the Director to justify the continued lawfulness of the detention, and (2) the weight to be given to individual factors in the balancing exercise may, depending on the circumstances of the particular case, vary considerably as the period of detention lengthens.

D.  The Applicant’s Submissions

13.  The Applicant has set out his grounds for application in his affirmation filed on 20 December 2023. In summary, they are as follows:

(1)  The Applicant has copied the applicable legal principles to habeas corpus cases.

(2)  His medical condition concerning his disability and mental stress has worsened.

(3)  The Applicant’s NRC is still ongoing.

14.  The Applicant has in addition made the following oral submissions at the hearing:

(1)  He wished to be granted bail.

(2)  This was his second application for habeas corpus.

15.  I have borne these points in mind as appropriate in my analysis below.

E.  Lawful Authority for Detention?

16.  A deportation order was made against the Applicant on 13 April 2023 which remains effective.

17.  The history of the detention and the corresponding authority for the detention are as follows:

Period of Detention	Provision of Immigration Ordinance	Place of Detention
27 December 2022 – 17 January 2023	section 32(3A)	Castle Peak Bay Immigration Centre
17 January 2023 – 27 March 2023	section 32(3A)	Tai Tam Gap Correctional Institution (“TGCI”)
28 March 2023 – 10 April 2023	section 29(1)	TGCI
11 April 2023 – 13 April 2023	section 29(2)	TGCI
13 April 2023 – Present	section 32(3)	TGCI

18.  As such, the detention from 27 December 2022 to 27 March 2023 was under section 32(3A), which authorises the Director of Immigration to detain a person pending removal.

19.  The detention from 28 March 2023 to 13 April 2023 was under section 29(1) and (2) of the Ordinance, which authorise the Secretary for Security to detain a person for the purpose of making inquiry as to whether he ought to be deported;

20.  The detention from 13 April 2023 to present was under section 32(3) pending his deportation from Hong Kong.

21.  Thus, there was and remains clear prima facie lawful authority for the detention.

22.  Therefore, the question arises as to whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

F. Whether Detention has become unlawful

23.  The assessment of whether an originally lawful detention has ceased to be lawful due to its continuation for an unreasonable period will be made in line with the “Hardial Singh principles”:

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

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

(3)  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 (“HS3”);

(4)  The Secretary/Director should act with reasonable diligence and expedition to effect removal (“HS4”).

24.  The burden of demonstrating the detention (and the continuation of it) is lawful rests on the respondent to the application for habeas corpus.

HS1

25.  I am satisfied that the Director has detained the Applicant for the sole purpose of removal or deportation throughout the detention period. HS1 is satisfied.

HS2 & HS3

26.  The starting point is the length of the detention – about 406 days – against which all the other factors must be weighed and balanced.

27.  For the following reasons, I am satisfied that HS2 and HS3 are satisfied:

(1)  The Applicant had since the commencement of his detention been un-cooperative in complying with re-entry formalities. The Applicant had refused to fill out an application form and to attend interviews with the Indian Consulate.

(2)  There is nothing to indicate that but for the Applicant’s repeated refusal to co-operate in obtaining a valid travel document, there was any further obstacle to his repatriation, hence release from detention.

(3)  In Johnson Benjamin v Director of Immigration & Secretary for Security[2], the Court of Appeal held that:

“In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee’s own unreasonable behaviours or conducts should not be counted or regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are other circumstances to show otherwise. This is so, as if otherwise, it would result in an absurd situation where the more unreasonably and uncooperatively a detainee behaves in seeking to frustrate or delay the procedures or process necessary to prepare for his removal, the more likely he is to be released. That cannot be the intention of the Hardial Singh principles.”

(4)  The period of detention that the Applicant has prolonged by his refusal to co-operate will thus not be counted as unreasonable when determining whether an originally lawful detention has become unlawful. I am of the view that such period in the present case would be the majority of the period of detention as the Applicant has since the commencement of the detention been acting unreasonably.

(5)  The risk of re-offending is real in view of his criminal record.

(6)  The Applicant has no local connection. Given the Applicant’s record of abscondence and clear attitude that he is unwilling to be repatriated and there is no further legal impediment to his removal, the risk of absconding is real.

(7)  The Indian Consulate has indicated that after compliance with the re-entry requirements, a travel document can be issued within 4 weeks. If the Applicant were to cooperate with the re-entry formalities, it can be expected that his removal can be effected within a reasonable time.

(8)  Overall, taking into account all the relevant factors, I am satisfied that HS2 and HS3 are met.

HS4

28.  In view of the steps that had been taken by the Director as set out in paragraphs 4 – 10 above, I am of the view that the Director had diligently pursued the Applicant’s removal and I am satisfied that HS4 is satisfied.

29.  Based on the above, I am of the view that the period of detention to date has remained lawful at all times and will remain lawful for the foreseeable future.

G.  Result

30.  For these reasons, I dismiss the Applicant’s application for writ of habeas corpus with no order as to costs.