GURVINDER SINGH v. DIRECTOR OF IMMIGRATION

HCAL 1293/2022

[2022] HKCFI 3777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1293 OF 2022

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J U D G M E N T

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A. Introduction

1.  The Applicant is the subject of a Removal Order made on 19 August 2013 pursuant to section 19(1)(b) of the Immigration Ordinance, Cap 115 (“Ordinance”).  He is currently held in immigration detention pending removal from Hong Kong pursuant to the Removal Order.  The present period of detention commenced on 24 October 2022, and has to date lasted 60 days.

2.  On 18 November 2022, the Applicant applied for writ of habeas corpus on grounds identified in his supporting affirmation.  

3.  I gave directions to bring this matter to a hearing on 22 December 2022, with the benefit of the provision of the Respondent’s Initial Response which also stands as the Skeleton Submissions.

4.  The Applicant has appeared in person, with the benefit of a Punjabi/English interpreter.  The Director has been represented by Mr Alvin Hor, Government Counsel. 

5.  Having considered the materials and submissions this afternoon, this is my Judgment.

B.  Background Matters

B.1    Immigration Status

6.  The Applicant is an Indian national.  He initially entered Hong Kong in 2013 lawfully but he did not depart before the expiry of the limit of stay granted to him.  He then has been overstaying in Hong Kong ever since.

7.  Later in the same year, he was arrested by Police for overstaying.  He was convicted for breach of conditions of stay for overstaying on 3 August 2013 and was sentenced to 14 days’ imprisonment suspended for 24 months.  That is his only criminal record during his stay in Hong Kong.

8.  Upon arrest by the Police, he was detained by the Director for slightly less than two months, from July to September 2013, under the various detention powers granted by the Ordinance.  As the chronology indicates, the Removal Order was issued against him during that brief period of detention.  But he was released on recognizance on 22 September 2013 and the recognizance was continued until it was ceased on 24 October 2022, marking the beginning of the present detention.

B.2    Non-refoulement Claim (“NRC”)

9.  The Applicant first raised his NRC in 2014. From 2014 to 2018, his NRC was processed under the Unified Screening Mechanism. By 2018, his NRC, on all applicable grounds, had been rejected by the Director and then by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”).

10.  Then the Applicant attempted to overturn the decisions he obtained in the administrative avenues by resorting to the courts.  From 2018 to 2022, his attempts failed at the level of the Court of First Instance (“CFI”), the Court of Appeal (“CA”) and eventually the Court of Final Appeal (“CFA”).  The Appeal Committee refused leave to appeal to the CFA on 3 March 2022.

11.  The Applicant tried to resurrect his NRC by requesting to file a subsequent claim (“SubC”) in May 2022 which was rejected by the Director in July 2022.  He applied to the CFI for leave to judicially review that refusal.  On 14 September 2022, the CFI refused his leave application and imposed a Restricted Proceedings Order (“RPO”) prohibiting him from instituting proceedings related to his NRC without leave of the CFI.

12.  As it now stands, the only extant legal proceedings are this habeas corpus application.

B.3    Detention, Steps towards Removal & Review of Detention

13.  Before the present detention, the Applicant was detained by the Director in 2013 for a period less than 2 months, as has already been mentioned above.

14.  The present detention commenced on 24 October 2022.  During the current period, the only obstacle towards his removal was his expired Indian passport which needed replacement.

15.  The Director indeed had started liaising with the General Consulate of Indian (“Indian Consulate”) months before the commencement of the present detention for the Applicant’s re-entry into India. The first contact was made on 26 July 2022.  Various chaser letters were then sent.  By 2 November 2022, the Director has secured a re-entry application form from the Applicant.  The Director had also arranged for the Applicant to attend an interview with the Indian Consulate on 2 December 2022, despite the Applicant’s initial reluctance to do so.  Indeed, the Applicant has apparently changed his mind from expressing willingness to return to India to expressing unwillingness to return.

16.  I am told that an emergency travel document could be issued within 2 to 3 weeks upon establishing the Applicant’s identity and that all re-entry formalities as required by the Indian Consulate are met. Though I was not told what the remaining re-entry formalities are, the re-entry application form of the Applicant had been secured and he had been interviewed by the Indian Consulate, and Mr Hor has updated that on 19 December 2022 the Indian Consulate confirmed a travel document would be provided.  Hence, Mr Hor said it will likely be provided in January (at the earliest, it now being later December), or if not then in February 2023.

17.  On 12 December 2022, a review of detention was conducted, and it was considered that there were grounds for continued detention, on the basis that the Applicant’s removal is going to be possible within a reasonable time.  It was noted that there are no outstanding legal proceedings except the current habeas corpus application, a RPO has been imposed on the Applicant and that the Director has been actively liaising with the Indian Consulate seeking permission for the Applicant’s re-entry.  

18.  On 13 December 2022, the Director considered that releasing the Applicant on recognizance was not warranted.  The Applicant was served with a Notice of Review of Detention on 15 December 2022.  That Notice points out, amongst other things, that: (i) the Applicant’s removal from Hong Kong is immediate and/or immediate repatriation is being arranged for his departure (and though not of any real relevance for this Applicant, it was also noted that under the now prevailing policy, removal of NRC claimants will be arranged once the NRC has been unsuccessful at the CFI level irrespective of whether there are further appeals to higher level of courts); (ii) he has no outstanding legal proceedings pending removal; (iii) he does not have fixed abode or close connection in Hong Kong to make it likely that he would be easily located; and (iv) there are no other circumstances favouring his release on recognizance.

C.  Applicable Principles

19.  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.

20.  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.

21.  I have applied those principles as applicable to the particular circumstances of this case.

D.  Applicant’s Submissions

22.  In his affirmation/written submissions filed in support of his application, the Applicant stated the grounds of his application as being that:

(1)  The present period of detention is unlawful, as he has been detained since 24 October 2022.

(2)  His NRC is at “2^nd JR Stage” and he wishes to stay in Hong Kong until all his claims are completed;

(3)  He is presently detained pending his NRC rather than pending his removal, and it is possible [sic] to remove him within a short reasonable period;

(4)  He shall not run away; and

(5)  He cannot go back to his home country because he has real risk of his safety and his life is in grave danger in his country.

23.  The last point was relevant to his NRC, and is not relevant to whether his continued detention pending removal is or is not lawful. 

24.  His point about his NRC claim being at the “2^nd JR Stage” is based on a misunderstanding of the facts, and a misapprehension as to process.  It is also not correct that he is now detained pending his NRC rather than his removal.

25.  Regarding his point that he shall not run away, I expressly note that he has no record of absconding, and I will bear this point in mind in my overall assessment below.

26.  At the hearing, the Applicant made the following broad points:

(1)  His release on recognizance was revoked when he went to sign as required, despite the fact that he has not committed crimes and has always obeyed his terms and conditions of recognizance.

(2)  If released, he would continue to obey the terms and conditions of recognizance, even if that required signing every day to provide confidence that he would not abscond.

(3)  He has confirmed that he would like to go back to his home country. 

(4)  He wishes to be released on “bail” so that he can arrange matters for his return.

(5)  In particular, he has used up all his money to get to this point, and he wants to be released even if it feels for the 2 to 3 weeks, so that he can ask friends to arrange for some funds that he can have upon his return, or else how would he reach his home.

(6)  He can provide a guarantor who is a Hong Kong permanent resident, if needed.

27.  I have taken those matters into my consideration, as can be seen below.

E.  Whether Detention is Lawful

28.  There can be no dispute that the Removal Order made against the Applicant is valid and subsisting.  There can also be no dispute that the authority to detain the Applicant exists under section 32(3A) of the Ordinance.  On that basis the detention is prima facie lawful, and the question on this application is whether the overall circumstances of the detention have rendered it unreasonable, and hence unlawful.

29.  The starting point is, as always, the period of detention.  In this case, and at least by comparison to many other cases, that period is relatively short, being a period of 60 days.  It is against that period that the other factors are to be weighed and balanced.

30.  It is clear that the Director intends to remove the Applicant at the earliest possible opportunity, and the power of detention is being used only for that purpose.  The Applicant will, of course, be released from detention when he is removed from Hong Kong – and the Applicant has confirmed that he is willing to be removed.

31.  There are no outstanding legal proceedings as may provide any legal impediment to his removal. 

32.  The only obstacle in the way of immediate removal is the need for a replacement travel document for the Applicant. During the relatively short period of detention, the Director has been in active liaison with the Indian Consulate in respect of the issuance of a travel document.  Despite the Applicant’s being reluctant at times to go through the re-entry formalities, I note that the Director has already secured the Applicant’s application form for this purpose and the Applicant had already been interviewed by the Indian Consulate for this purpose.  From one thing said by the Applicant this afternoon, he gave the impression that he had been reluctant to assist with the re-entry formalities until after he had sought to be released at this hearing, but would have intended to assist later.  It is perhaps unfortunate that the Applicant has himself prolonged the time required for obtaining the necessary travel document.

33.  In any event, by email dated 2 December 2022, the Director had urged the Indian Consulate to facilitate the Applicant’s removal despite his uncooperative attitude and to advise on any alternative means which could facilitate the issuance of an emergency travel document.  In light of the recent confirmation from the Indian Consulate that it will issue a travel document for the Applicant, I agree with the Director that there is good prospect that the Indian Consulate will issue that emergency travel document within a reasonable time.  There is, therefore, indeed a reasonable prospect of effecting removal in the near future.

34.  I bear in mind that other than the offence for breach of conditions of stay in 2013, the Applicant has otherwise maintained a clean record in his decade-long stay in Hong Kong.  He promised not to run away if he is to be released on recognizance, he has offered to report on a daily basis if necessary, and I note that he has no record of absconding in the past. Therefore, I accept that the risk of absconding is lower for the Applicant than it is in many other cases.

35.  I also have some sympathy with the Applicant’s stated desire to be able to contact friends to seek the provision of some funds which he can use upon his first return to his home country.  But the Applicant has not explained why he cannot make that contact, or to seek the assistance of his friends, without first being released on recognizance.

36.  The Applicant remains the subject of a Removal Order and the Director is empowered under the Ordinance to remove him and to detain him pending, that is until his removal – essentially for a reasonable period of time to facilitate the intended removal.  The present period of detention – 60 days – is relatively short.  The only obstacle standing in the way of removal is the need to replace the Applicant’s expired passport and the Director has already made real progress on that front, despite some display of reluctance on the part of the Applicant to assist.  I see no reason why an emergency travel document would not be issued within reasonable time and removal effected in the near future.

37.  In the overall circumstances, on balance, I reach the conclusion that the Applicant has been detained, and will likely be detained, only for a period that is reasonable in all the circumstances. Therefore, his detention has been and continues to be Hardial Singh compliant, and lawful.

F.  Result

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