MOROL RANA v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1538/2023

[2023] HKCFI 2597

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1538 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant is the subject of both (1) a Removal Order dated 5 September 2017, issued under section 19 of the Immigration Ordinance Cap 115 (“Ordinance”), and (2) a Deportation Order dated 19 September 2023, issued under section 20 of the Ordinance. He has been held in Immigration Detention since 15 July 2023, under various provisions of the Ordnance, pending his removal/deportation from Hong Kong.

2.  The period of detention has lasted 87 days to date, and began when the Applicant was discharged from prison, after serving a sentence of 15 months’ imprisonment for the offence of ‘taking employment while being the person in respect of whom a removal order is in force’.

3.  On 31 August 2023, the Applicant applied for a writ of habeas corpus, seeking his release from detention, on the basis that the detention had become unlawful. I gave directions for an initial response to the application – which was filed on behalf of the Director of Immigration and Secretary for Security – and to bring the matter to hearing.

4.  At the hearing, I gave leave to amend the application so as to remove the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) as a respondent to the application, and to substitute the Director and Secretary as respondents.

5.  The Applicant has acted in person, with the benefit of a Bengali/English interpreter. The Director/Secretary have been represented by Mr Jason Wong, Government Counsel, who signed the initial response.

6.  This is my Decision.

B.  Background

B.1  Immigration Status

7.  The Applicant is a Bangladeshi male, born in 1987. He claims to have entered Hong Kong illegally on 23 June 2014, the day on which he was arrested by the Police as an illegal immigrant.

8.  As stated, a Removal Order was issued against him on 5 September 2017. Later, a Deportation Order was issued against him on 19 September 2023.

9.  The Deportation Order was made during the present period of detention, in light of the Applicant’s conviction and sentence mentioned above.

10.  The Applicant has no family connection in Hong Kong.

B.2  Applicant’s Non-refoulement Claim (“NRC”)

11.  The Applicant lodged a NRC on 27 June 2014. By 10 July 2017, the Director had rejected the Applicant’s NRC on all applicable grounds. On 29 September 2017, the Applicant’s appeal/petition was dismissed by the Board.

12.  On 21 May 2018, the Applicant’s application for leave to apply for judicial review to challenge the decision of the Board was refused by the Court of First Instance (“CFI”). Subsequent attempts to take the matter further on appeal ended on 29 May 2020, when the Appeal Committee of the Court of Final Appeal dismissed the application made to it, under the Rule 7 Procedure.

13.  In the meantime, on 14 October 2019, the Applicant requested to make a Subsequent Claim. That was refused by the Director on 27 January 2021, and the subsequent appeal/petition was dismissed by the Board on 1 April 2022.

14.  On 13 April 2022, the Applicant filed a second application for leave to apply for judicial review, this time against the Board’s decision relating to his Subsequent Claim. The hearing of that application has been fixed for 31 October 2023, namely in 3 weeks’ time. Where the Court has been made aware of the need for priority, bearing in mind the Applicant’s detention, it is reasonable to expect that the decision will be made within a couple of weeks thereafter.

B.3  Efforts at Removal

15.  Liaison between the Director and the Bangladeshi Consulate General, seeking a replacement travel document to facilitate the Applicant’s repatriation, began as early as 16 May 2022, long before the present period of detention commenced. The Consulate verified the Applicant’s identity on 31 March 2023.

16.  During the present period of detention, the liaison has continued. However, the Applicant has refused to complete the re-entry formalities, and has refused to attend an interview at the Consulate. Despite the further contact from the Director, explaining the Applicant’s uncooperative attitude in completing the re-entry seeking formalities, the Consulate has reiterated that it is necessary for the Applicant to complete the re-entry seeking application form for issuing him a travel document.

B.4  Present Detention

17.  Since the present period of detention began, the Applicant has been detained under sections 32(3A), 29(1), 29(2) and 32(3) of the Ordinance respectively.

18.  On 3 October 2023, a recent review of detention was conducted and it was considered that there were grounds for continued detention of the Applicant. On 4 October 2023, the Director considered that releasing the Applicant on recognizance was not warranted, on the grounds that: (1) the Applicant’s removal is going to be possible within a reasonable time, in light of the imminent hearing date before the CFI; (2) the Applicant poses, or is likely to pose, a threat or security risk to the community; (3) he may abscond and/or re-offend; (4) he does not have close connection or fixed abode in Hong Kong; (5) he has directly or indirectly prevented or delayed his own removal; and (6) there are no other circumstances in favour of his release.

19.  As already stated, the Applicant has consistently expressed unwillingness to return to Bangladesh, and has refused to cooperate in facilitating that return.

C.  Applicable Principles

20.  Those principles applicable on an application for writ of habeas corpus in cases with 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.  As always, it is important to remember that the burden is on the respondent to an application for writ of habeas corpus to justify the continued lawfulness of the detention.

D.  Applicant’s Submissions

22.  The Applicant’s grounds for his application, as set out in the hand-written attachment to his affirmation, can be summarised as follows:

(1)  There is insufficient risk to justify the lengthy detention since 15 July 2023.

(2)  The Director has failed to give proper consideration to whether removal can be effected within a reasonable time.

(3)  The Director has failed to give reasons why no weight is attached to the factor of the effect of detention on the Applicant and his family.

(4)  The Director has also failed to take into account that the Applicant has previously complied with recognizance requirements. Proceeding on the basis of what ‘may’ or ‘might’ happen is not appropriate.

(5)  The Applicant is in poor health, and quick attention to health requirements is not possible in detention.

(6)  The Applicant does not pose any threat or security risk to the community.

(7)  He is a single passport holder and has only one conviction of working.

(8)  The conditions of detention cause him trauma, and leave him suffering from claustrophobia.

23.  At the hearing, the Applicant made further submissions as follows:

(1)  The Applicant emphasised that he had always previously complied with recognizance conditions.

(2)  He would comply with such conditions in future, if he were to be released.

(3)  His judicial review hearing has been fixed for 31 October 2023, and he will be at that hearing.

(4)  He can therefore be released with confidence that he would attend the hearing of his own application on 31 October 2023.

(5)  He has never been detained before, and is never applied for ‘bail’ before.

(6)  He can offer a guarantor for his release on recognizance.

(7)  If he cannot stay in Hong Kong, following the result of his application to be heard at the end of the month, he will go back to his home country Bangladesh.

24.  The Applicant also suggested that he had already applied to renew his now expired passport. On the materials, that is contrary to what in fact has happened. In fact, the Applicant has refused to cooperate. When I pointed this out to him, the Applicant suggested that he would cooperate later – and said he had even told the immigration officers that he would do so later. He said he would promise to deal with the documents whenever he is next asked to do it.

25.  I take these various matters into account, and give them the weight in the balance that seems to me to be appropriate.

E.  Whether Detention is Unlawful

26.  The Applicant is subject to both a valid and extant Removal Order and Deportation Order. There has been, and there remains, prima facie lawful authority for detention under the various provisions of the Ordinance already referenced above.

27.  Hence, the question is whether the detention has become unreasonable in all the circumstances, and hence unlawful – the relevant assessment to be performed in accordance with the Hardial Singh principles.

28.  The starting point is the length of the period of detention – here 87 days – against which the other factors are to be weighed and balanced in the assessment of overall reasonableness.

29.  I accept that the Applicant has been detained throughout only for the reasons authorised for the purpose of his removal or deportation. HS1 is satisfied.

30.  I also accept that the Director/Secretary have been exercising reasonable diligence in seeking to effect the Applicant’s removal at the earliest possible opportunity. This is evident from the liaison with the Consulate, in attempts to procure issue of a travel document to the Applicant notwithstanding his lack of cooperation. It is also evident from the seeking of priority for the Applicant’s court proceedings. HS4 is satisfied.

31.  In considering whether the Applicant’s removal can be effected within a reasonable time, I take into account that his application for leave to apply for judicial review relating to the Subsequent Claim will be heard in just 3 weeks, and that a decision can reasonably be anticipated within a couple of weeks thereafter. A real timescale can be seen. If the application is refused, that will remove the legal impediment to removal.

32.  That would leave only the practical impediment caused by the Applicant’s outstanding travel document, which is impeded only by his own deliberate refusal to cooperate in the re-entry formalities required by the Consulate of his own country. If the Applicant were to cooperate, he would be able to be released soon after the determination of his remaining court application. His refusal to cooperate to date is, and any continuation of it would be, a self-imposed obstacle to removal/deportation and hence his release from detention. He cannot, in fairness, complain about the period of detention which he himself causes to be unnecessarily lengthened. I think significant weight should be given to that factor pursuant to section 32(4A)(d) and (e) of the Ordinance.

33.  I have taken into account that the Applicant now says that he will cooperate in the re-entry formalities required by the Consulate for the issuing of a travel document to him. If he were to be cooperative, the travel document could likely be obtained before determination of his judicial review application. However, against the history of his consistently uncooperative attitude, I am not prepared to take that new statement at face value. It is not impressive for a detained person such as the Applicant consistently to refuse to cooperate, until the hearing such as this when a promise is offered of future cooperation.

34.  It may be helpful to make clear to this Applicant and to other detained persons that, if they refuse to cooperate in obtaining a travel document whilst detained, a later suggestion given to the Court that they would cooperate in future if released is not likely to be accepted as having any real weight. To put it bluntly, if a detained person consistently refuses to cooperate in obtaining a replacement travel document, a sudden change of stance asserted when making an application for release is unlikely to be believed.

35.  There is also a real risk that the Applicant would abscond, were he to be released on recognizance. I take into account the logical point that the Applicant would want to attend the hearing of his own judicial review application on 31 October 2023. However, the risk of absconding is nevertheless evident from his repeated expression of unwillingness to return, his continued refusal (at least to date) to cooperate in the necessary formalities for his return, and his lack of substantial local ties or connections. As already stated, the apparent change of stance this morning does not convince me that there is no risk of absconding. Absconding would frustrate the very purpose for which the power of detention was conferred, and exercised. This is one of the paramount factors in the weighing and balancing process.

36.  As to risk of re-offending, I note that the previous conviction was the result of an offence committed whilst released on recognizance. Together with the risk of absconding, it seems to me that there is a risk of re-offending (even if lower than in some other cases). The commission of any offence, which might lead to conviction and sentence of imprisonment, would only likely delay the intended removal/deportation of the Applicant, as well as having some impact on Hong Kong society.

37.  I place no weight on the Applicant’s complaints about the conditions in which he is detained. I accept those conditions are the result of strict adherence to the relevant rules for detention. I also note that, according to the Director’s records, the Applicant is never previously raised any request or complaint about medical treatment, accommodation arrangements, or any other aspect of his detention in TGCI. Further, there is no evidence that any health conditions suffered by the Applicant would not be properly attended to whilst he is in detention, either within the detention facility or (as may be necessary) at external medical service providers.

38.  In the circumstances, it seems to me that both HS2 and HS3 are satisfied.

39.  Overall, weighing and balancing the individual factors against the period of detention, and likely foreseeable future period of detention, I find that the detention is reasonable in all circumstances, and hence unlawful.

F.  Result

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