ZZAMAN MD ASADU v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 221/2024

[2024] HKCFI 789

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 221 OF 2024

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BETWEEN

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J U D G M E N T

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A. Application

1.  By an ex parte application filed on 25 January 2024, 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 Immigration Department (the “Department”).

B. Background of Applicant

2.  The Applicant is a Bangladesh national born in 1982 who was arrested for remaining in Hong Kong illegally on 1 October 2013. He has no family connections in Hong Kong.

3.  On 5 October 2013, the Applicant indicated his intention to lodge non-refoulement claim (“NRC”) by way of written notification.

4.  He was released on recognizance on 12 November 2013.

5.  The Applicant’s passport had expired on 1 October 2017.

6.  On 16 December 2019, a removal order was issued against the Applicant (the “Removal Order”).

7.  On 14 November 2023, a deportation order was issued against the Applicant (the “Deportation Order”).

8.  On 30 November 2023, the Applicant’s recognizance was ceased on the ground that his removal from Hong Kong was imminent. He had since then been detained at the Castle Peak Immigration Centre (the “CIC”).

9.  At the time of the hearing, the Applicant has been detained for 105 days.

C. NRC related proceedings

10.  The Applicant’s NRC was assessed and rejected by the Director of Immigration (the “Director”) on 27 November 2015 (the “Director’s Decision”).

11.  The Applicant’s appeal to the Torture Claims Appeal Board against the Director’s Decision was dismissed on 1 September 2017 (the “TCAB Decision”).

12.  The Applicant’s application to the Court of First Instance for leave to apply for judicial review against the TCAB Decision was dismissed by the Form CALL-1 in HCAL 638/2017 dated 3 July 2018 (the “JR Decision”).

13.  The Applicant’s application for extension of time to appeal against the JR Decision was dismissed on 7 October 2021 (the “EOT Decision”).

14.  The Applicant’s application for leave to appeal against the EOT Decision was dismissed on 31 March 2022. (the “CA Judgment”).

15.  On 13 May 2022, the Applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal (“CFA”) out of time against the CA Judgment, which was dismissed by the Court of Appeal (“CA”) on 29 June 2022.

16.  On 14 July 2022, the Applicant filed an application for leave to appeal to the CFA against CA’s decision of 29 June 2022 under FAMV 297/2022, which was dismissed by the CFA on 19 May 2023.

17.  According to the updated removal policy of the Department since 7 December 2022, once a NRC claimant’s subsequent legal proceedings have reached the stage of having been rejected by the Court of First Instance, the existence of further proceedings will not normally be considered by the authority as an impediment to removal.

18.  There is thus no legal impediment to the Applicant’s removal due to any outstanding NRC related proceedings.

D. Record of Criminal Convictions

19.  On 5 November 2016, the Applicant was arrested by the Police for “possession of a dangerous drug”. On 22 December 2016, he was convicted of the said offence, and was fined HK$2,000.

20.  On 18 January 2018, the Applicant was arrested by the Police for “trafficking in a dangerous drug”. On 12 September 2018, he was convicted of the said offence, and was sentenced to 36 months’ imprisonment.

E. Steps towards Removal

21.  Prior to the Applicant’s present detention, on 5 July 2019 and 8 August 2022 respectively, the Department had already written to the local Consulate General of the People’s Republic of Bangladesh (the “BGD CG”) seeking their assistance in confirming the Applicant’s re-entry to Bangladesh in writing.

22.  On 31 August 2022, the Applicant’s identity was verified by the BGD CG. Thereafter, the Department has been following up with the BGD CG regarding the issuance of a valid travel document to the Applicant for his re-entry to Bangladesh. On 3 January 2024, the Department sent a chaser letter to the BGD CG seeking their assistance in issuing a replacement travel document to the Applicant.

23.  Eventually, on 17 January 2024, a travel permit, which remains valid for a period of 3 months from the date of its issue for a single return journey to Bangladesh, was issued to the Applicant by the BGD CG.

24.  The Applicant initially indicated on 23 August 2022 his unwillingness to attend interview with the BGD CG. Then, on 6 April 2023 and 27 July 2023 respectively, the Applicant expressed willingness to return to his home country. This was repeated on 22 December 2023, 28 December 2023, and 17 January 2024.

25.  Despite having been informed that he would be repatriated in early February 2024, the Applicant had insisted on taking out the present application.

26.  On 26 January 2024 and 8 February 2024, the Department conducted interviews with the Applicant during which he had a change of heart and expressed unwillingness to return to his home country. He was informed that his travel permit had been issued and he could be repatriated by early February 2024. Yet, he insisted on waiting for the result of the present application.

27.  A repatriation flight scheduled for 19 March 2023 (6 days after the hearing) has been arranged for the Applicant.

F. Applicable Principles

28.  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.

29.  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.

G. The Applicant’s Submissions

30.  The Applicant has set out his grounds for application in his affirmation filed on 25 January 2024. In summary, they are as follows:

(1) Prior to and during the present detention, the Applicant has repeatedly expressed his willingness to return to his home country.

(2) No arrangements of removal have been made for the Applicant, and he could not communicate with the Consulate of his own country. He did not have any meeting with the Consulate.

(3) His passport was a hand written passport and it takes about 8 to 10 months to verify and issue a valid travel document to the Applicant.

(4) While being detained in CIC, the Applicant feels physically and mentally sick.

31.  At the oral hearing, the Applicant made the following oral submissions in addition to the written submissions:

(1) He is willing to return but he needs to be assured that his passport and his personal belongings will be returned to him. Otherwise he will not go back.

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

H. Lawful Authority for Detention?

33.  The Deportation Order was issued on 14 November 2023 and remains valid. The Applicant has been detained from 30 November 2023 to 13 March 2024 under section 32(3) which permits the detention of a person against whom a deportation order is in force pending his deportation from Hong Kong.

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

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

I. Whether Detention has become unlawful

36.  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”); and

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

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

HS1

38.  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

39.  The starting point is the length of the detention – 105 days – against which all the other factors must be weighed and balanced.

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

(1) Removal of the Applicant is imminent with a repatriation flight arranged for him 6 days after the hearing, on 19 March 2024.

(2) The Applicant’s expired passport is a machine readable one instead of the old hand written version as alleged. All along, the Department has been actively liaising with the BGD CG in issuing a valid replacement travel document to the Applicant. The time that it has taken for the Department to obtain a replacement travel document from the Bangladesh CG was reasonable.

(4) But for the Applicant’s insistence on proceeding with the present application, he could have been removed in early February 2024.

(5) I agree that there is a significant risk that the Applicant may re-offend should he be released on recognizance. While released on recognizance, the Applicant had failed to comply with the conditions of recognizance, and was later convicted of “possession of a dangerous drug” and “trafficking in a dangerous drug”. For the latter conviction, he was sentenced to 36 months’ imprisonment.

(6) With no local connection and the past history, I consider the risk of abscondence to be high. If the Applicant absconds again, it would defeat the primary purpose for which the power to detain has been conferred.

(7) There is no reason to believe that the Applicant would not receive proper medical treatment while detained if required.

(8) The Department has confirmed that if the Applicant can arrange for his personal belongings to be brought to him, the Applicant could bring them with him. If the expired passport is not kept by the BGD CG, and if it is in the possession of the Department, it will be returned. In any event, it is not up to the Applicant to impose conditions on his repatriation, since he has no right to remain in Hong Kong.

(9) Overall, weighing the period of detention – around 105 days – against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

41.  I am satisfied that HS4 is satisfied as shown in the efforts undertaken by the Immigration Department as set out in paragraphs 21 – 27 hereinabove. I am thus of the view that the Director had diligently pursued the Applicant’s deportation.

42.  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.

J. Result

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