GHALE RAJ v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 2006/2023

[2024] HKCFI 169

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2006 OF 2023

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JUDGMENT

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A. Application

1.  By an ex parte application filed on 9 November 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.  The Applicant was born on 1 April 2000 and is a Nepali national who arrived Hong Kong on 19 April 2014 as a dependant of his father, who is a Hong Kong permanent resident. He was last granted extension of stay as a dependant until 19 April 2021.

3.  The Applicant was convicted of various offences as set out in paragraph 13 hereinbelow.

4.  After serving his sentence and upon his discharge, the Applicant was detained at the Castle Peak Bay Immigration Centre (from 25 February 2023 to 13 September 2023 and at the Tai Tam Gap Correctional Institution from 13 September 2023 until the present.

5.  On 28 March 2023, a removal order was issued against the Applicant (the “Removal Order”) which remains valid.

6.  On 27 December 2023, a deportation order was issued against the Applicant (the “Deportation Order”).

7.  The Applicant’s passport, which was claimed by the Applicant to have been lost, has in any event expired on 29 October 2021.

8.  At the time of the hearing, the Applicant has been detained for 319 days.

C.  NRC related proceedings

9.  The Applicant raised a non-refoulement claim (the “NRC”) on 18 May 2023, which was based on alleged fear of being harmed by the Hindu religious party in Nepal for killing cattle (which are worshipped as a God) and selling it as buffalo meat. The NRC was rejected by the Director of Immigration (the “Director”) on 21 July 2023. The Applicant lodged an appeal to the Torture Claims Appeal Board (the “TCAB”) against the refusal of the NRC, which was dismissed on 13 October 2023 (the “TCAB Decision”).

10.  The Applicant’s application to the Court of First Instance for leave to apply for judicial review against the TCAB Decision was heard on 2 January 2024 in HCAL 1962/2023 (the “JR Application”). The Court of First Instance has indicated that the decision would be handed down within 4 weeks thereafter.

11.  According to the updated removal policy of the Immigration 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.

12.  There is thus currently a legal impediment to the Applicant’s removal as the result of the JR Application is pending.

D.  Criminal Record & Abscondence Record

13.  The Applicant’s criminal records are summarised as follows:

Date of Sentence	Offence	Sentence
12 December 2018	Possession of a dangerous drug	Admission to Drug Addiction Treatment Centre
26 October 2019	Common assault	HK$1,000 fine
3 November 2022	Robbery	3 years and 10 months’ imprisonment

14.  The Applicant’s record of abscondence is as follows:

Date of Abscondence	Date of Re-Arrest
27 October 2016	-
20 June 2018	6 September 2018

E.  Steps towards Removal

15.  The Applicant had indicated his unwillingness to return to Nepal since his detention in February 2023. The unwillingness to return was repeated by the Applicant on 27 June 2023, 27 July 2023, 25 August 2023, 22 September 2023 and 27 October 2023.

16.  As the Applicant claimed to have lost his passport, the Immigration Department (the “ID”) had sought the assistance of the Consulate General of the Federal Democratic Republic of Nepal (the “Consulate”) for the issue of a replacement travel document for the Applicant’s repatriation. A replacement travel document with the validity until 19 June 2023 was issued on 20 March 2023. After the expiry of the first replacement travel document, the ID again sought the assistance of the Consulate. A second replacement was issued on 6 December 2023, with the validity date of 5 March 2024.

17.  At the hearing, the Applicant indicated that he was willing to go back to Nepal and wished to be released.

F.  Applicable Principles

18.  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.

19.  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

20.  The Applicant has set out his grounds for application in his affirmation dated 1 November 2023. In summary, they are as follows:

(1)  He has a pending NRC. His life would be in danger if he goes back to Nepal.

(2)  He has a disability which was caused by concrete having fallen onto his leg whilst he was detained in Lai Chi Kok Detention Centre in 2021. He is currently on painkillers and psychiatric treatment for his PTSD.

(3)  There is no reasonable prospect of his removal being effected within a reasonable period, due to the fact that he is a prosecution witness in an upcoming criminal trial.

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

(1)  He wished to go back to Nepal as soon as possible and was willing to withdraw his JR Application.

(2)  He was told that he would be a key prosecution witness in a criminal trial.

22.  I shall bear these points in mind as appropriate in my analysis below.

H.  Lawful Authority for Detention?

23.  The present detention commenced on 25 February 2023 after the Applicant was discharged from prison. The detention was under section 32(2A)(a) of the Immigration Ordinance (Cap 115) (the “Ordinance”) pending the decision on whether a removal order should be made against the Applicant.

24.  From 4 March 2023, the Applicant was detained under section 32(2A)(b) of the Ordinance pending decision as to whether a removal order should be made against him.

25.  From 25 March 2023, the Applicant was detained under section 32(2A)(c) of the Ordinance pending decision as to whether a removal order should be made against him.

26.  From 28 March 2023, the Applicant was detained under section 32(3A) of the Ordinance pending removal under the RO.

27.  From 23 May 2023, the Applicant was detained under section 29(1) of the Ordinance for the purpose of inquiry as to whether the Applicant ought to be deported under section 20 of the Ordinance.

28.  From 30 May 2023, the Applicant was detained under section 37ZK of the Ordinance pending final determination of the NRC.

29.  From 13 October 2023, the Applicant was detained under section 32(3A) of the Ordinance pending removal under the RO.

30.  From 15 December 2023, the Applicant was detained under section 29(1) of the Ordinance for the purpose of inquiry as to whether the Applicant ought to be deported under section 20 of the Ordinance.

31.  From 27 December 2023 to the date of the hearing, the Applicant was detained under section 32(3) of the Ordinance pending his removal.

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

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

I.  Whether Detention has become unlawful

34.  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”).

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

HS1

36.  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

37.  The starting point is the length of the detention – about 319 days – against which all the other factors must be weighed and balanced.

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

(1)  Although the Commissioner of Police had indicated that the attendance of the Applicant as a key prosecution witness in two upcoming criminal cases would be required, Ms Zhi has confirmed that the Commissioner of Police would not be applying for the Applicant’s detention should the Applicant be deported upon the completion of his JR Application. However, there might be a possibility that the Commissioner of Police might apply for the suspension of the Deportation Order in future, should the attendance of the Applicant be subsequently required as a witness. This will therefore not be an impediment to the Applicant’s deportation.

(2)  I note that the Applicant has not claimed any fear of being returned to Nepal between 2014 and 2023. The NRC was only taken out in May 2023, 3 months after the commencement of his detention. A preliminary consideration of the JR Application does not reveal strong merits.

(3)  The decision of the JR Application is imminent, given the Court of First Instance’s indication.

(4)  Although the Applicant now indicates that he is willing to be repatriated, and the Applicant’s family is in Hong Kong, with his father as a permanent Hong Kong resident, I am of the view that the risk of absconding remains significant because:

a)  There is no further impediment to the Applicant’s deportation.

b)  The Applicant has previously repeatedly indicated his unwillingness to return to Nepal.

c)  The Applicant has a record of abscondence.

(5)  The Applicant had signed a letter at the hearing indicating his wish to withdraw his JR Application, which will be passed by the ID to the Judge handling the JR Application on the same day.

(6)  The ID has indicated that his deportation could be implemented within a week, after the approval by the Judge of the Applicant’s withdrawal of the JR Application.

(7)  The ID has undertaken to seek the earliest available flight to effect the Applicant’s deportation.

(8)  Although the Applicant suffers from leg injury and mental illness, there is no evidence showing the medical care provided to the Applicant is inadequate.

(9)  Overall, weighing the period of detention – around 319 days – against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

39.  I am satisfied that HS4 is satisfied as the Director had pursued the Applicant’s deportation diligently, as shown in paragraphs 15, 16 and 38 (6) & (7) above.

40.  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

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