KHAN MOHAMMAD SHADAB v. DIRECTOR OF IMMIGRATION

HCAL 896/2022

[2022] HKCFI 3058

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 896 OF 2022

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D E C I S I O N

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A.  Introduction

1.  The Applicant is currently held in immigration detention pending removal from Hong Kong pursuant to a Removal Order made on 2 July 2014. He is, therefore, held pursuant to the authority under section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”). The present period of detention commenced on 27 June 2022, and to date has lasted 110 days, that is approaching 4 months.

2.  On 26 August 2022, the Applicant applied for writ of habeas corpus. The only ground disclosed in the supporting affirmation is that his medical condition has made him unsuitable for detention.

3.  On 19 September 2022, I gave directions to bring the matter to a hearing, originally fixed for 5 October 2022. Those directions included for the Respondent (“Director”) to provide an initial response, and for the Applicant to have leave to file a reply to that initial response. The initial response was filed, but the Applicant has not filed any reply. The hearing was subsequently re-fixed to today because the Court was informed that the Applicant would be hospitalized on 5 October 2022.

4.  At the hearing, the Applicant has appeared in person (with the assistance of a Hindi interpreter).

5.  The Director was represented at the hearing by Mr Andrew Tong, Senior Government Counsel (Ag.), who mainly placed reliance on the initial response/skeleton argument he signed.

6.  This is my Decision.

B.  Background Facts

B.1  Immigration Status

7.  The Applicant is an Indian national. He first came to Hong Kong on 17 May 2014 and was permitted to stay as a visitor until 31 May 2014. He overstayed and was arrested by Police on 10 June 2014.

8.  As said, he is now subject to a Removal Order issued on 2 July 2014. The Removal Order was issued under section 19(1)(b) of the Ordinance. It has remained in force throughout.

9.  The power to detain pending removal under such a removal order is to be found in section 32(3A) of the Ordinance, which provides:

A person in respect of whom a removal 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.

B.2  NCR and JR

10.  The Applicant lodged a non-refoulement claim (“NRC”) on 11 June 2014 and then pursued his claim in all available administrative and judicial avenues in the years followed.

11.  By 2017, his NRC on all applicable grounds had been rejected by the Director and also by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”). He then brought judicial review proceedings in the courts against the Board’s decision. He lost all the way up from the Court of First Instance (“CFI”) to the Court of Final Appeal (“CFA”), which refused leave to appeal on 6 January 2020.

12.  He then requested to lodge a subsequent claim (“SubC”), which was refused by the Director on 10 July 2020. He came back to the CFI again, seeking leave to judicially review that refusal decision. On 31 January 2022, I refused leave, and imposed an order to prohibit him from instituting or continuing with legal proceedings related to any NRC without first obtaining leave from the CFI under section 27 of the High Court Ordinance Cap 4 (“Section 27 Order”).

13.  On 19 April 2022, the Applicant sought leave to institute or continue with legal proceedings, as required by the Section 27 Order. I refused leave on 25 July 2022.

14.  As it now stands, the only outstanding legal proceedings comprise this habeas corpus application.

B.3  Periods of Detention and Review

15.  During the past 8 years since the Removal Order was issued on 2 July 2014, the Applicant was released on recognizance most of the time.

16.  Prior to the present period of detention, the Application was subject to three periods of detention, with a duration lasting between 15 days to three months. The last such detention commenced on 6 June 2022, on which date the Applicant’s recognizance was revoked. But the Applicant was then admitted into hospital for medical treatment. Apparently the Director was under the impression that there was uncertainty in the discharge date and decided to release him on recognizance on 21 June 2022.

17.  On 27 June 2022, the Applicant was discharged from hospital. The Director then revoked the Applicant’s recognizance, thus commencing the present detention.

18.  The Applicant’s detention has been reviewed twice, on 22 August 2022 and 26 September 2022 respectively. On each occasion, the Director has recommended continued detention. The grounds are: (a) the Applicant’s removal is going to be possible within a reasonable time; (b) he may abscond and/or (re)offend: (c) he does not have close connection or fixed abode in Hong Kong; and (d) there are no other circumstances in favour of his release.

19.  The reference to reoffending refers to the Applicant’s previous criminal record where he was convicted of possession of dangerous drugs and was fined HK$800. The risk of absconding refers to his having absconded on five occasions from 2019 to 2022. The consideration that the are no other circumstances in favour of release has included consideration of the Applicant’s medical condition: as to which, see further below.

B.4  Steps towards Removal

20.  When the present detention commenced on 27 June 2022, the only obstacle standing in the way of removal was the need to replace the Applicant’s expired Indian passport.

21.  The Director started liaising with the Consulate General of India (“India CG”) as early as 18 August 2021. The liaison continued after the present detention had begun. A positive response was obtained from the India CG in early September 2022. By then, the Applicant had been detained for about 2½ months. On 16 September 2022, the Director eventually obtained for the Applicant an emergency travel document expiring on 5 March 2023.

22.  The Director has proceeded to book a seat for the Applicant on a repatriation flight to India. It was stated in the initial response dated 28 September 2022 that the Applicant’s removal was scheduled in mid-October 2022. At the hearing, Mr Tong stated that the updated position is that a removal flight has now been arranged, subject to pending payment, for 19 October 2022 – only five days from now.

C.  Applicable Principles

23.  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.

24.  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.

D.  Merits of Application

25.  As said, in the affirmation, the only ground put forward by the Applicant in support of his being released from detention pending his removal is his medical condition. Exhibited to his affirmation is (a) a memo issued by Yan Oi Chest Clinic signed by a doctor stating that the Applicant has Tuberculosis and “left neck lymph node relapse”; and (b) a letter signed by the Applicant stating, in essence, that he is not in a position to be detained due to his poor health.

26.  At the oral hearing, the Applicant handed up further documents evidencing his condition and treatment, including in-patient treatment. He also explained (in my summary of his submissions) that: (1) his health condition is very serious, and he wishes to obtain proper treatment; (2) to obtain proper treatment and to be able to eat the appropriate food, he needs to be released from detention; (3) he has had three periods of in-patient treatment at three different hospitals, each for 10 days; (4) he was last discharged from hospital on 7 October 2022 (which one of the documents handed up also evidenced); (5) taking different medicines has been ineffective, in particular to treat his very low heart rate; (6) he wants to save his life, and he has only one chance to do so; (7) even then, his medical condition is still under further investigation,; (8) because he is very sick, he cannot go back to his own country now, and he can save his life in Hong Kong.

27.  I will bear in mind all of these points in my analysis below.

28.  The Removal Order issued against the Applicant is extant. The detention of the Applicant under section 32(3A) of the Ordinance clearly provides prima facie lawful authority to detain the Applicant pending removal. The question raised by this application is whether the detention has become unlawful, as a result of the period of detention becoming unreasonable in all the circumstances – when looking at the Hardial Singh principles outlined above.

29.  Mr Tong submits that the detention of the Applicant has been reasonable at each stage, and throughout the entire 110 days. He submits that the period is of itself not unreasonable so as to become unlawful so far. Having carefully considered the circumstances, I agree.

30.  First, the Director does intend to deport the Applicant and is only using the power to detain for that purpose. The Director clearly intends to remove the Applicant as soon as possible. Throughout the period of the present detention, there has been no legal impediment to the Applicant’s removal. The Director had been taking active steps to obtain a replacing travel document until one was obtained on 16 September 2022. A repatriation flight has been secured for the very near future, on 19 October 2022. HS1 is satisfied.

31.  Secondly, the Director has acted with reasonable diligence and expedition to effect removal, evident by the efforts in obtaining replacement travel document and booking a repatriation flight. HS4 is satisfied.

32.  Thirdly, there has been no extant NCR or related judicial review proceedings at any point in the present period of detention. All the NRC or SubC related proceedings had already come to a halt by 31 January 2022 when the Court imposed the Section 27 Order. The legal impediment to removal has ceased. In the circumstances, and where the Director was actively seeking the issuance of a replacement travel document and efforts were made to secure a repatriation flight, the Director was correctly of the view that the Applicant could likely be removed within a reasonable period of time. HS3 is satisfied.

33.  I also agree that there is risk of absconding which would frustrate the purpose for which the power of detention is given. The Director and the Court are entitled to place weight on the Applicant’s previous absconding record.

34.  Whilst not unsympathetic to the Applicant’s medical condition, I agree with the Director that there is no evidence to suggest that he would not have access to proper medical assistance while detained. During periods of detention, the Director arranged for him to be admitted to hospital. I am also not unsympathetic to the Applicant’s preference to receive treatment in Hong Kong. However, although the documents provided by the Applicant demonstrate that he has a reasonably serious medical condition, and that he has been treated for it for some time, including as an in-patient, none of the documents suggest either that the Applicant is unfit for detention – indeed, he was discharged from hospital on 7 October 2022 – or unfit for travel. Therefore, I agree with Mr Tong that this factor should have little bearing in the Court’s overall balancing exercise.

35.  Balancing matters overall – and keeping firmly in mind that the period of detention to date is 110 days and a repatriation flight is just five days away, and notwithstanding the Applicant’s medical condition – I conclude that the Applicant has been detained, and will likely be further detained, only for a period that is reasonable in all the circumstances. HS2 is satisfied.

E.  Result

36.  The Applicant continues to be lawfully detained. The Applicant’s application for writ of habeas corpus is, therefore, dismissed.

37.  I make no order as to costs.