KAMRUZZAMAN ANI v. HONG KONG SAR GOVERNMENT

HCAL 1233/2022

[2022] HKCFI 3774

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1233 OF 2022

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R E A S O N S  F O R

J U D G M E N T

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A. Introduction

1.  The Applicant is the subject of a Removal Order issued on 19 January 2016 and a Deportation Order issued on 8 December 2022.  He has been held in immigration detention since 20 January 2022, pursuant to various sections of the Immigration Ordinance Cap 115 (“Ordinance”), and pending his removal from Hong Kong.  To the date of hearing, the period of detention had lasted 334 days, around 11 months.

2.  On 9 November 2022, the Applicant applied for a writ of habeas corpus on grounds identified in his supporting affirmation.

3.  I gave directions to bring the matter to a hearing on 19 December 2022, with the benefit of an Initial Response filed on behalf of the Respondent.

4.  At the end of the hearing, I dismissed the application, with no order as to costs, for reasons to be handed down later. These are my Reasons for Decision.

B.  Background

B.1  Immigration Status

5.  The Applicant is a Bangladeshi national, who entered Hong Kong illegally on 17 July 2014.  After being arrested for being a suspected illegal immigrant on 20 July 2014, the Applicant was released on recognizance on 9 September 2014.

6.  On 19 January 2016, a Removal Order was issued against the Applicant under section 19(1)(b)  of the Ordinance.

7.  On 2 August 2021, whilst on recognizance, the Applicant was convicted for theft and possession of an identity card relating to another person, and he was sentenced to a total of 12 months’ imprisonment.

8.  On 20 January 2022, the Applicant was discharged from prison and transferred to CIC for detention under section 32(3A)  of the Ordinance.  That marked the commencement of his present period of administrative detention.

9.  On 8 December 2022, a Deportation Order was issued against the Applicant under section 20(1)(a)  of the Ordinance.

B.2  Non-refoulement Claim

10.  On 26 July 2014, the Applicant expressed his intention to lodge a torture claim.  By Notice of Decision dated 21 June 2016, the Director of Immigration (“Director”)  rejected the Applicant’s non-refoulement claim (“NRC”)  on all then applicable grounds.  Subsequently, by Notice of Further Decision dated 2 June 2017, the Applicant was informed that his NRC was rejected on all applicable grounds including right to life under Article 2 of the Hong Kong Bill of Rights.

11.  On 1 August 2017, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”)  dismissed the Applicant’s Appeal/Petition against the Director’s decision.

12.  On 8 August 2017, the Applicant filed an application in HCAL 494/2017 for leave to apply for judicial review (“JR”)  against the Director’s refusal of the NRC and the Board’s dismissal of the Appeal Petition.

13.  On 24 May 2018, leave to apply for JR was refused by the Court of First Instance (“CFI”).

14.  On 30 August 2018, the Court of Appeal (“CA”)  in CACV 190/2018 dismissed the Applicant’s appeal from the CFI.  On 29 November 2018, the CA dismissed the Applicant’s application for leave to appeal to the Court of Final Appeal (“CFA”).

15.  On 29 April 2019, the CFA Appeal Committee dismissed the Applicant’s application for leave to appeal.

16.  On 5 January 2022, the Director received the Applicant’s request to make a ‘subsequent’ NRC, which request was refused by the Director on 23 March 2022.

17.  On 29 April 2022, the Applicant filed an application in HCAL 287/2022 for leave to apply for JR against that refusal. However, on 4 July 2022, the Applicant sent a letter to the Court to withdraw that intended JR.

18.  I note that despite that letter, the application was actually dealt with on its merits.  By the relevant decision dated 6 July 2022, leave to apply for JR was refused, and at the same time a Restrictive Proceedings Order (“RPO”)  was made, prohibiting the Applicant from commencing or continuing any legal proceedings relating to any NRC, without the leave of a Judge of the CFI.

B.3  Present Detention and Reviews

19.  As already indicated, the Applicant was originally released on recognizance in September 2014, pending the outcome of his NRC.  Though he was required to report regularly, he failed to report recognizance on 14 May 2019, shortly after his application for leave to appeal to the CFA was dismissed on 29 April 2019.  The Applicant was not able to be located for a period of about 2 years, until he re-surfaced after his arrest by police on 21 May 2021.  When asked why he had failed to report recognizance, the Applicant explained that he was scared of being sent back to his home country.  I note that the Applicant repeated that explanation in Court during the hearing before me.

20.  As also already indicated, the Applicant was taken back into immigration detention following his discharge from prison in January 2022.  Since then, there have been various reviews of detention, and various interviews with the Applicant.

21.  As to the interviews, the Applicant has variously expressed both willingness and unwillingness to return to his home country.  On two occasions on 6 May 2022 and 14 June 2022, he expressed unwillingness to return.  On nine occasions between 15 June 2022 and 30 August 2022, he expressed willingness to return.  Thereafter, on eight occasions from 31 August 2022 up to the present, he expressed unwillingness to return.

22.  As to the reviews of detention, release of the Applicant on recognizance was not recommended on the repeated grounds that: (a)  his removal is going to be possible within a reasonable time; (b)  he poses or is likely to pose a threat to the community; (c)  he may abscond and/or reoffend; (d)  he has no close connection or fixed abode in Hong Kong; and (e)  there are no other circumstances in favour of his release.

23.  Also during the present detention, the Consulate General of the People’s Republic of Bangladesh has been requested to issue a replacement travel document for the Applicant.  Relevantly, a travel permit has been issued to the Applicant on 15 November 2022, with a validity period of three months.

24.  The Applicant’s deportation has now been scheduled for 29 December 2022, and a copy of the electronic travel itinerary has been provided to the Court.

C.  Applicable Principles

25.  In its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781, the Court of Appeal addressed the principles to be applied in a case such as the present.  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 this case.

26.  The 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.

27.  I have applied those principles as applicable to the particular circumstances of this case.

D.  Applicant’s Submissions

28.  In his affirmation/written submissions filed in support of his application, the Applicant stated amongst other things that:

(1)  He married by way of a customary marriage registered on 10 April 2022 by the parents of both families in Bangladesh, but the marriage is yet to be sealed in a mosque in Hong Kong.  He will inform the Immigration Department of his change of marital status, once the marriage formalities are completed.

(2)  It appears that the Director is using the power to detain to prevent the commission of criminal offences which violates HS1.

(3)  The detention has gone on for a period of time that in all the circumstances is unreasonable, not least when there are factors pointing towards release, so that HS2 is not satisfied.

(4)  Nor can deportation be affected within a reasonable time, as the Respondent cannot say when or how it will be effective and there are obstacles to removal, so that HS3 is not satisfied.

(5)  The absence of promptitude from the period of administrative inactivity means that HS4 is not satisfied.

(6)  The detention is in breach of Article 5 of the Hong Kong Bill of Rights and Article 41 of the Basic Law.

(7)  Continued detention causes the Applicant to become claustrophobic.  He feels anxious, nervous and uncomfortable, which combined with his other underlying health issues (in particular abdominal pain)  has a very negative impact on his mental health.

(8)  The factors informing how long a period is reasonable includes the effect of detention on his family, especially his wife who has her own medical history of suffering from kidney infection sometimes requiring hospitalisation.  The Applicant should be there to care for her in accordance with their religious beliefs.

(9)  Though the Applicant acknowledges his previous failure to report recognizance for more than two years, he is ready to modify his behaviour.  Indeed, as the primary reason for seeking release is to be reunited with his wife, it makes no sense to abscond.

(10)  He does not pose any threat to society.  His only criminal offence was not violent, and no one was financially harmed.

(11)  He has paid his debt to society by the sentence served, and continuing to be held in immigration detention is tantamount to duplication

(12)  The conditions under which he is held are humiliating and an arbitrary or unlawful interference with his privacy and other rights.  He is treated as a prisoner, rather than someone held in administrative detention, which is having a detrimental effect on his mental health.

29.  In his oral submissions during the hearing, the Applicant sought to make many (ultimately irrelevant)  submissions relating to some alleged confusion over who is his immigration case officer and what different officers might have said, the circumstances leading to his conviction, and what happened at his hearing of the recent application for leave to apply for JR. 

30.  When reminded that the purpose of the hearing was to identify whether the Applicant’s continued detention pending removal had become unlawful as being unreasonable all the circumstances, the Applicant essentially referred back to his previous written submissions.  He emphasised that he did not think he was getting proper treatment, and felt that if he was not to be released he would die in detention.  He also explained why he had not reported recognizance, because he was scared to be returned to his home country.  He further emphasised that he is not a risk to society.

31.  I have taken all those matters into my consideration.

E.  Merits of Application

32.  The central question for this habeas corpus application is whether the period of detention has become too long and thus unlawful by the time of assessment.  Hence, it is important to bear in mind that it is the period of detention to date, here the period of 334 days, against which the other factors are to be weighed and balanced.

33.  But, as I explained to the Applicant during the hearing, it is not for this Court to determine whether the Applicant should be allowed to stay in Hong Kong, which was the question to be answered in his NRC related proceedings.  Nor do these proceedings provide an opportunity to revisit the Applicant’s conviction.

34.  I accept that in habeas corpus applications, the importance of the conditions of detention is not to be overlooked and should be taken into account in the appropriate way.  In assessing whether the period of detention has become too longer, the Court has to balance (a) the gravity of any risks arising from release against (b) the deprivation of liberty.  The magnitude of the deprivation of liberty primarily turns on the length of the period of detention, but the conditions of detention are also a measure of how much a detainee has been deprived of his liberty.  The more severe the restraints placed upon the detainee, the deeper the intrusion into personal liberty.

35.  Having considered the particular circumstances of this case, I had no difficulties in finding that the Hardial Singh principles are satisfied. 

36.  There can be no dispute that there is a valid and subsisting Removal Order made against the Applicant, and further that there has recently been a valid and subsisting Deportation Order.  The Director plainly does intend to remove the Applicant and is only using the power to detain for those purposes. 

37.  The Director has also acted with reasonable diligence and expedition to effect removal.  Even prior to the end disposal of the Applicant’s NRC and related legal proceedings, the Director has sought to obtain a replacement travel document for the Applicant.  A repatriation flight has now been scheduled for 29 December 2022, just 10 days from the hearing.

38.  There are also now no legal impediments to removal, the last of which was removed in August 2022.  At the same time, the RPO was made on the Court’s noting that it was clear from the Applicant’s conduct in seeking persistently to re-litigate his NRC without viable grounds that there was an abuse of process, likely to continue unless the RPO were to be made.  This point is also relevant to the detention in that the Applicant chose to make and pursue a ‘subsequent’ claim, after his protracted original NRC had been through the Court process.

39.  Further, I accept – in light of the previous period of absconding, and the Applicant’s own statement that he absconded because he was scared of being sent to his home country – that there is a significant risk that the Applicant would abscond if released on recognizance. That would defeat the very purpose of the intended removal.

40.  I do not think the personal circumstances relied upon by the Applicant, as might in some cases point towards release, overbalance in this case the factors pointing to continued detention.

41.  In the overall circumstances, I conclude that the detention to date has remained lawful and the envisaged short, that is 10-day, period of further detention of the Applicant would not be unreasonable, and hence would not be unlawful under the Hardial Singh principles.

F.  Result

42.  For those reasons, I dismissed the application, and I made no order as to costs.