MOHAMMAD MONER HOSSAIN alias HOSSAIN MOHAMMAD MONER v. IMMIGRATION DEPARTMENT AND ANOTHER

HCAL 2298/2023

[2024] HKCFI 157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2298 OF 2023

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DECISION

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1.  Introduction

1.1  The Applicant is subject to a Removal Order (“RO”) and Deportation Order (“DO”) respectively made on 21 December 2018 and 6 November 2023.  He has been held in immigration detention since 4 September 2023 pursuant to various sections of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the hearing before me, the Applicant has been detained for 129 days.

1.2  On 20 December 2023, the Applicant applied for a writ of habeas corpus.  Directions were thereafter given for Respondents to file an initial response.  The hearing of the present application was originally scheduled to be heard on 1 February 2024 at 9:30 am.

1.3  However, on an application by the Department of Justice made on 4 January 2024 to accord priority to the present case, I refixed the hearing to 10 January 2024 at 4 pm.  The application was made on the basis that the Applicant’s travel permit is due to expire before 1 February 2024 and a repatriation flight has been arranged for 12 January 2024. 

1.4  At the hearing, the Applicant appeared in person, with the benefit of an interpreter, and the Respondents were represented by Ms Yuki Kong, Government Counsel, who also signed the initial response.  I also took the opportunity to explain to the Applicant the reason for refixing the hearing, to which he confirmed he had no objection.

1.5  By way of update, at the hearing, the Ms Kong informed me that the repatriation flight scheduled for 12 January 2024 has been cancelled, but an alternative flight on 16 January 2024 has been secured.

2.  Background

2.1  The Applicant is a Bangladeshi national born on 12 January 1980.  He claimed to have entered Hong Kong illegally on 8 August 2015.  He surrendered to the Immigration Department on 13 August 2015 and was released on the same day pending further investigation.  He entered into immigration recognizance on 17 September 2015. 

2.2  On 12 May 2016, the Applicant was arrested for illegal remaining, and on the same day, he made a non-refoulement claim (“NRC”).

2.3  On 21 May 2018, the Director of Immigration (“Director”) decided not to prosecute the Applicant for illegal remaining. 

2.4  On 20 December 2018, the Director rejected the Applicant’s NRC.  On the following day, and as stated above, the RO was made against the Applicant. 

2.5  Whilst released on recognizance, the Applicant was arrested on 5 November 2022 in an anti-illegal worker operation by the Director.  On 13 February 2023, the Applicant was convicted of “taking employment while being a person in respect of whom a removal order is in force” and sentenced to 15 months’ imprisonment.

2.6  On 4 September 2023, the Applicant was discharged from prison and transferred to Castle Peak Bay Immigration Centre, upon which the present detention commenced.

2.7  As stated above, the DO was made against the Applicant on 6 November 2023.

2.8  The Applicant’s detention since 4 September 2023 is pursuant to:

(1)  Section 32(3A) of the Ordinance (from 4 September 2023 to 16  October 2023) pending his removal;

(2)  Section 29(1) of the Ordinance (from 17 to 30 October 2023) pending inquiry as to whether he should be deported;

(3)  Section 29(2) of the Ordinance (from 31 to 6 November 2023) pending inquiry as to whether he should be deported and/or completion of his deportation proceedings;

(4)  Section 32(3) of the Ordinance (from 6 November 2023 onwards) pending his removal under section 25 of the Ordinance.

2.9  According to the information provided by the Applicant, he has no local ties in Hong Kong.

3.  The Applicant’s NRC and related proceedings

3.1  The Applicant’s NRC was rejected by the Director on 20 December 2018.

3.2  On 27 December 2018, the Applicant lodged an appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Officer (“TCAB”), which application TCAB dismissed on 30 October 2020.

3.3  On 25 February 2021, the Applicant applied for leave out of time to apply for judicial review against TCAB’s decision (HCAL 226/2021).  Shortly after the commencement of the present detention, a request was made to the court to accord priority to HCAL 226/2021.  On 2 November 2023, DHCJ Bruno Chan dismissed HCAL 226/2021([2023] HKCFI 2823).

4.  Present detention and its reviews

4.1  As at the commencement of the present detention, there was a legal impediment under the Updated Removal Policy as HCAL 226/2021 remained extant. That legal impediment has since been removed.

4.2  The other impediment, being a practical one, was the Applicant’s expired passport.  The Director has even prior to the present detention liaised with local Consulate of the People’s Republic of Bangladesh for the issuance of a replacement travel document.  A replacement travel document was issued on 16 October 2023.  A repatriation flight has also been arranged for 16 January 2024, six days after the hearing before me.

4.3  Following the issuance of the DO, a Notice of Detention was served on the Applicant, in which it is stated (1) the Applicant’s removal is going to be possible within a reasonable time, (2) he poses, or is likely to pose, a threat of security risk to the community, (3) he may abscond and/or (re)offend, (4) the Applicant does not have close connection or fixed abode in Hong Kong, and (5) there are no other circumstances in favour of his release.

4.4  Throughout the present detention, the Applicant expressed his unwillingness to return to his home country.

5.  The Applicant’s submissions

5.1  The Applicant’s submissions as set out in his written materials may be summarized as follows:

(1)  His detention has become unreasonable.

(2)  He wishes to take his NRC to the higher courts.

(3)  He does not have a valid travel document and therefore cannot be removed.

(4)  The risk of absconding is low.

(5)  The Applicant has already served his sentence for the crime which he committed.

(6)  The conditions of his detention are similar to detention in jail or prison.

5.2  At the hearing, the Applicant asked for bail and to remain in Hong Kong for one year to sort out his financial problems in his home country.  In essence, he wishes to have time to dispose of his landed properties in order to pay off his creditors who have threatened to harm the Applicant.  The Applicant confirmed that the foregoing was the same matter raised in his NRC.

6.  The applicable principles

6.1  The applicable principles are set out in Harjang Singh v Secretary for Security [2022] HKCA 781.  I have in particular borne in mind the summary set out at §164 thereof.

6.2  I remind myself that the burden is on the Respondent to an application for a writ of habeas corpus to justify the lawfulness of the Applicant's detention.

6.3  Further, as has been stated and repeated in many previous decisions, an application for a writ of habeas corpus is not an opportunity for the Applicant to continue to assert the concerns underpinning his NRC and the court in his habeas corpus application will not look at the merits of any such claim.  The central question is whether the detention has become or will foreseeably become unreasonable in all the circumstances and hence unlawful.

6.4  Under section 32(4A) of the Ordinance, the detention of a person shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including (1) whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, (2) whether the person poses, or is likely to pose, a threat or security risk to the community and (3) factors that directly or indirectly prevent or delay the person’s removal that are not within the control of the Director.

7.  Analysis

7.1  Throughout the Applicant’s detention period, there has been prima facie lawful authority to detain the Applicant pursuant to various sections of the Ordinance. 

7.2  The question which falls for determination is therefore whether the detention has become unreasonable in all the circumstances, and hence unlawful.  The starting point is the period of detention, namely 129 days, against which the various other factors must be weighed and balanced.

7.3  I accept that, throughout the period of detention, the intention of the Director/Secretary is to remove/deport the Applicant and that has been the only purpose of the Applicant's detention.  HS1 is satisfied.

7.4  I also accept that the Director/Secretary have acted with diligence and expedition to effect the Applicant's removal.  This is amply demonstrated by the efforts to conclude the Applicant’s NRC at the Court of First Instance level, the request to expedite these proceedings and arrangements made for the issuance of a replacement travel document and a repatriation flight.  HS4 is satisfied.

7.5  As matters now stand, there are no further impediments, whether legal or practical, to the Applicant’s removal.  A repatriation flight has been arranged to take place in a few days’ time.

7.6  Although Ms Kong relies on the risk of reoffending, given the Applicant’s “light” conviction record and its nature, I do not consider that the Applicant poses a serious threat of security risk to the community. However, I accept her submissions that his previous conviction does show the Applicant’s lack of regard in compliance with the law.

7.7  I also accept Ms Kong’s submission that given his professed unwillingness to return to his home country, there is a significant risk of absconding which is of importance in the assessment of the lawfulness of the detention, especially given the imminence of his removal.  The foregoing risk is highlighted by the Applicant’s lack of any local ties.  Absconding would defeat the primary purpose of effecting removal, for which the power to detain has been conferred.

7.8  Whilst the Applicant complains about the conditions of the present detention, there is no record that he has made known to the Respondents any claimed adverse effects of the detention on him.

7.9  The Applicant’s contentions that for various reasons he cannot be removed within a reasonable time are factually inaccurate.  A replacement travel document has been issued and a repatriation flight arranged.

7.10  For the above reasons, HS2 and HS3 are also satisfied.

8.  Conclusion

8.1  I am satisfied that the Applicant's detention, and likely foreseeable future period of detention, has been and will remain lawful.

8.2  As a result, the Applicant's application is dismissed with no order as to costs.