MANSURI, INTEKHAB ALAM MOHAMED SHAKIL REZA v. HONG KONG SAR GOVERNMENT

HCAL 2428/2018

[2018] HKCFI 2468

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2428 OF 2018

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D E C I S I O N

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INTRODUCTION

1.  This is an application by the Applicant seeking an order that a writ of habeas corpus ad subjiciendum be issued in respect of his current detention under Section 32(3A) of the Immigration Ordinance, Cap 115 (“the Ordinance”) since 6 September 2018.

BACKGROUND FACTS

2.  The application, made on 1 November 2018, was supported by a short affirmation of the Applicant in which the following was stated:-

“Sir/Madam, I wanted to go back [to] my country (India), yet I am languishing in CIC [Detention] over 2 months, not knowing how long more it would [take]? Please grant me bail out, so I can pursue my Indian Consulate to issue an out pass, which Immigration Authority don’t know how long it takes. Please help me.”

3.  On 1 November 2018, the court directed that the application be heard on 5 November 2018, with notice of the hearing being given to the Department of Justice.

4.  On 2 November 2018, the court received Mr Chan (for the Respondent)’s Skeleton Submissions and Chronology of Events setting out, amongst other things, the basic facts of the Applicant’s case.  Mr Chan’s Skeleton Submissions and Chronology of Events were interpreted to the Applicant with the assistance of a Hindi interpreter prior to the hearing.  At the hearing on 5 November 2018, the court heard oral submissions from the Applicant and from Mr Chan.

5.  Although the basic facts of the Applicant’s case as related by Mr Chan have not been confirmed by affidavit (understandably in view of the urgency with which the hearing was fixed), as I understand from the Applicant at the hearing on 5 November 2018, the following summary is not in dispute.

6.  The Applicant is an Indian national.  On 8 April 2011, he arrived in Hong Kong as a visitor with a limit of stay until 22 April 2011.  He has been overstaying in Hong Kong since 23 April 2011.

7.  On 8 April 2014 (some 3 years later), the Applicant was arrested by the Police for overstaying.  He was detained by the Police from 8 April 2014 to 10 April 2014, and thereafter by the Immigration Department from 10 April 2014 to 16 May 2014 under the Ordinance.  On 11 April 2014, the Applicant submitted a written signification to lodge a non-refoulement claim.  He was released on recognizance on 16 May 2014.

8.  On 6 January 2017, the Applicant’s overstaying offence was brought up for prosecution considerations.  On 17 February 2017, the Applicant was arrested and charged with the offence of breach of condition of stay (overstaying).

9.  On 26 May 2017, the Applicant’s non-refoulement claim was rejected by the Director under the Unified Screening Mechanism.  On 6 June 2017, the Applicant submitted an appeal against the rejection of his non-refoulement claim.  On 16 October 2017, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissed the Applicant’s appeal.

10.  On 18 May 2018, the Court of First Instance dismissed the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (HCAL 806/2017).  On 10 July 2018, the Court of Appeal dismissed the Applicant’s appeal against the order of the Court of First Instance dismissing his application for leave to apply for judicial review (CACV 187/2018).

11.  On 7 August 2018, the Applicant was convicted of the offence of breach of condition of stay (overstaying), and was sentenced to 10 weeks’ imprisonment.

12.  On 27 August 2018, a removal order was made against the Applicant, and detention of the Applicant under Section 32(3A) of the Ordinance was authorised by an Assistant Director of Immigration pending the Applicant’s removal from Hong Kong.

13.  On 6 September 2018, the Applicant was discharged from prison.  He has since been detained under Section 32(3A) of the Ordinance at the Castle Peak Bay Immigration Centre (“the CIC”) pending his removal from Hong Kong.  On the same date, a letter was sent to the Consulate General of India in Hong Kong to inform them that the Applicant had been detained and held under immigration custody.

14.  On 7 September 2018, the Applicant was interviewed by the Clearance Section of the Immigration Department and served with the relevant documents in relation to his detention under the Ordinance. During the interview, the Applicant expressed his willingness to leave Hong Kong.  On 13 September 2018, a “Notice of Removal Order and Right of Appeal” was served on the Applicant, in which he declared that he did not intend to appeal against the removal order.

15.  On 18 September 2018, the Immigration Department sent a letter to the Consulate General of India to request for a replacement travel document to be issued to the Applicant.  On 3 October 2018, the Applicant was brought to the Consulate General of India for interview in relation to the issuance of a travel document to him.

16.  On 29 October 2018, a review of detention was conducted.  It was decided that the Applicant would not be released on recognizance because (i) his removal was going to be possible within a reasonable time, (ii) immediate repatriation was being arranged for his departure, and (iii) there were no outstanding legal proceedings impeding his removal. On 31 October 2018, a Notice of Review of Detention was served on the Applicant.

DISCUSSION

17.  The legal principles governing an application for the issue of a writ of habeas corpus are well settled.  The central question is whether the detention is unlawful (see Fidelis Ahuwaraezeama Emen v Superintendent of Victoria Prison [1998] 2 HKLRD 448, at 453C-D per Stock J, as he then was).

18.  An unlawful detention is one that is made without proper lawful authority.  An initially lawful detention may be turned into an unlawful detention if it fails to meet the Hardial Singh principles as summarised by Dyson LJ (as he then was) in R(I) v Secretary of State for the Home Department [2003] INLR 196 (at paragraph 46) and adopted by Ribeiro PJ in Ghulam Rbani v Secretary for Justice for and on behalf of the Director of Immigration (2014) 17 HKCFAR 138 (at paragraph 23), as follows:-

“(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

(iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal.”

19.  In relation to the question of whether a person has been detained for a period that is reasonable in all the circumstances, the following statement of principle by Au J in Bhullar Angad Singh v HKSAR, HCAL 134/2014 (21 October 2014), at paragraph 17, is applicable:-

“The Director has a discretion in respect of the continued detention of a person pending his deportation. Pending deportation means no more than ‘until’ deportation, and so long as the Director is intent upon removing a person at the earliest possible moment and the Director remains reasonably of the view that he can do so within a reasonable period of time and that it will not be impossible for him to remove the person within that reasonable period of time, then the Director is entitled to continue to detain in the exercise of his discretion: Mahesh Rai v Secretary for Security and the Director of Immigration (HCAL 81/2008, 21 August 2008, Hartmann J) at paragraph 12; A (Torture Claimant), supra, at paragraph 31.”

20.  The applicant is currently detained under Section 32(3A) of the Ordinance, which provides as follows:-

“A person in respect of whom aremoval order under section 19(1)(b) is in force may be detained under the authority of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration pending his removal from Hong Kong under section 25.”

21.  The Applicant’s detention is, prima facie, lawful because:-

(1)   a removal order in respect of the Applicant is in force; and

(2)   the applicant is being detained pending his removal from Hong Kong under Section 25 of the Ordinance.

22.  On the question of whether the Applicant has been detained for a period that is reasonable in all the circumstances, there is nothing in the evidence before the court to show that the Director is using the power of detention for any purposes other than for removal of the Applicant, or it has become apparent to the Director at any time that it would not be possible to effect the Applicant’s removal within a reasonable time. The Applicant has been detained since 6 September 2018, for a period of about 2 months up to the present moment.  The Applicant’s non-refoulement claim has been rejected by the Director.  His appeal against the Director’s rejection of his non-refoulement claim has been dismissed by the Torture Claim Appeal Board/Non-Refoulement Claims Petition Office.  His application for leave to apply for judicial review of the decision of the Torture Claim Appeal Board/Non-Refoulement Claims Petition Office has been dismissed by the Court of First Instance, and his appeal against the decision of the Court of First Instance has been dismissed by the Court of Appeal.  In other words, the Applicant has exhausted all legal avenues to pursue his non-refoulement claim. There is no further legal impediment to the Applicant’s removal from Hong Kong.  The only matter outstanding is a travel document to be issued by the Consulate General of India in Hong Kong.  I have been informed by Mr Chan that, according to the Immigration Department’s experience in handling similar cases, it would usually take the Consulate about 3-4 months from the date that a travel document is requested (in this case on 18 September 2018) to issue the necessary travel document.

23.  There is nothing to suggest that the Director has failed to act with reasonable diligence or expedition to effect the Applicant’s removal.  It is reasonable for the Director to take the view that the Applicant can be removed within a reasonable period of time.  I consider that the Applicant has been detained for a period that is reasonable in all the circumstances, and his current detention is in compliance with the Hardial Singh principles.

24.  I shall now deal with a few points raised by the Applicant orally or in his written submission handed up to the court at the hearing in support of his application.

25.  First, the Applicant confirms that he wishes to return to India, and says that if he is released on bail, he can pursue the Indian Consulate General to issue the travel document faster by frequently “nagging and requesting about [his] predicament and urgency of going back home”.  There is, however, no evidence or basis to support the suggestion that the Indian Consulate General would speed up the process of issuing the travel document merely because it is being pursued by the Applicant personally or repeatedly.

26.  Second, the Applicant refers to the circumstances of a number of other detainees at the CIC and says that they have been detained for many months but are still waiting to be removed or deported back to India.  It seems to me that the circumstances of each case must be looked at individually.  It is wrong in principle to determine the Applicant’s application by reference to what happened and may have happened to other detainees when their circumstances are different.

27.  Third, the Applicant says that he is suffering from mental anguish due to his situation, and because of his predicament his family members (including his aging parents) are in constant distress.  The Applicant has also informed the court that he is suffering from high blood pressure and is taking medication prescribed by the doctor at the CIC.  In my view, in so far as the Applicant’s medical conditions are concerned, there is no reason to believe that he would not receive proper medical treatment at the CIC if required.  In so far as the alleged mental anguish on his part and distress on the part of his family members are concerned, these are not sufficient legal grounds to find that the Applicant’s detention is illegal.

28.  Finally, the Applicant says that if he is released, he will not commit any criminal offence (as shown by the fact that he did not commit any offence during the period that his non-refoulement claim was undergoing assessment) or abscond, and he is prepared to make a daily report to a Police station.  While these matters are relevant to the assessment of whether the Applicant ought to be detained pending his removal (which is primarily a matter for the Director, and not for the court, to decide), subject to the Hardial Singh principles, they do not go to the question of the legality of his detention.

29.  In all, none of the grounds relied upon by the Applicant can justify the issue of a writ of habeas corpus in the present case.

DISPOSITION

30.  The application for the issue of a writ of habeas corpus is dismissed, with no order as to costs.