TEUHIDUL ISLAM v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 465/2024

[2024] HKCFI 1238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 465 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 14 March 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 Correctional Services Department.

B. Background of Applicant

2.  The Applicant is a Bangladesh national who claimed to have entered Hong Kong illegally on 1 April 2008. He was arrested by the Police for illegal remaining in Hong Kong on 16 April 2008. He was then detained from 18 April 2008 until he was released on recognizance on 14 May 2008. He raised a non-refoulement claim (“NRC”) on 30 April 2008. The Applicant’s passport had expired on 12 September 2010.

3.  On 2 September 2011, the Applicant was convicted on “assault occasioning actual bodily harm” and was sentenced to 2 months’ imprisonment (suspended for 12 months).

4.  On 24 May 2013, the Applicant was convicted of “trafficking in dangerous drugs” and was sentenced to 5 years and 6 months’ imprisonment. After serving his sentence, the Applicant was detained since 5 August 2016 until his release on recognizance on 19 September 2016.

5.  A removal order was made against the Applicant on 12 August 2016 (the “Removal Order”).

6.  The Applicant was convicted of “trafficking in dangerous drugs” and was sentenced to 10 years and 2 months’ imprisonment on 6 August 2018. On 30 November 2023, the Applicant was discharged from prison and detained under section 32(3A) of the Immigration Ordinance (the “Ordinance”) until present.

7.  At the time of the hearing, the Applicant has been detained for 155 days.

C. NRC related proceedings

8.  The Director of Immigration (the “Director”) rejected the Applicant’s NRC on 26 October 2016 by a notice of decision (the “Director’s Decision”). The Applicant’s appeal to the Torture Claims Appeal Board against the Director’s Decision was dismissed on 18 October 2019 (the “TCAB Decision”).

9.  No application for leave to commence judicial review against the TCAB has been taken out. However, the Applicant has indicated that he would consider taking his NRC further if he is not repatriated soon.

10.  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.

11.  As there is no application taken out for leave to commence judicial review, there is currently no legal impediment to the Applicant’s removal due to any outstanding NRC related proceedings.

D. Criminal Record/Record of Abscondence

12.  The Applicant’s criminal and sentencing records are as follows:

Date of Conviction	Offence	Period of Sentence
2 September 2011	Assault occasioning actual bodily harm	2 months (suspended for 12 months)
24 May 2013	Trafficking in dangerous drugs	5 years 6 months
6 August 2018	Trafficking in dangerous drugs	10 years 2 months

E. Steps towards Removal

13.  The Director had sought assistance from the Consulate General of the People’s Republic of Bangladesh (the “Bangladesh CG”) for the Applicant’s re-entry since June 2016.

14.  On 11 May 2021, the Director informed the Bangladesh CG that they intended to remove the Applicant after his discharge from prison on 29 November 2023 and it was requested that a replacement travel document be issued for that purpose. The request was rejected as it was considered to have been put in too early.

15.  The Director sent another request in August 2022. A repeated request was sent again by letter in October 2023. An email request was sent to the Bangladesh CG again in November 2023.

16.  A reply was eventually received from the Bangladesh CG on 19 December 2023, that the Applicant’s case would require an interview and assessment of the relevant documents prior to the issuance of a replacement travel document to him.

17.  Photos and re-entry application were provided and submitted to the Bangladesh CG on 17 January 2024. The Bangladesh CG informed the Director that the Applicant’s travel permit is expected to be available by the end of April 2024. On 2 May 2024, the Bangladesh CG further indicated that the travel permit should be available within 2 weeks.

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 filed on 14 March 2024. In summary, they are as follows:

(1) He has been co-operative with submitting re-entry formalities.

(2) He has never absconded whilst on recognizance.

(3) The Director has not provided a realistic time-frame on when he could be removed.

(4) The Director has not acted with reasonable diligence as he had been requesting to go back since July 2019.

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

(1) He had asked to be removed as early as 2019, yet he was not so removed.

(2) The Bangladesh CG told him that the Immigration Department has not done anything to process his travel document.

(3) No deportation order has been issued against him yet.

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

H. Lawful Authority for Detention?

23.  The Removal Order was issued on 12 August 2016 and remains valid. The Applicant has been detained from 30 November 2023 under section 32(3A) of the Ordinance which permits the detention of a person against whom a removal order is in force pending his deportation from Hong Kong.

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

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

I. Whether Detention has become unlawful

26.  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 for Security (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”).

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

HS1

28.  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

29.  The starting point is the length of the detention – 155 days – against which all the other factors must be weighed and balanced.

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

(1) The Applicant has not filed any application for leave to commence judicial review against the TCAB Decision. It is irrelevant that no deportation order has been made against the Applicant as there is a Removal Order in place against him. The Applicant has no right to remain in Hong Kong. There is at the moment no legal impediment to the Applicant’s removal.

(2) The Applicant could not have been removed earlier in 2019 as he was at that time still serving his prison sentence for previous offences.

(3) The Applicant has indicated he wished to go back to Bangladesh and has co-operated in obtaining a valid travel document to enter Bangladesh. The only obstacle to his repatriation, is the issue of a valid travel document, which the Bangladesh CG has indicated to be available in about 2 weeks’ time. It is thus foreseeable that the Applicant’s removal can be carried out imminently.

(4) The Applicant has been repeatedly convicted of serious drug-related offences. As the Applicant has no right of employment in Hong Kong, the risk of him turning again to criminal activities is real.

(5) Although the Applicant has indicated a strong willingness to return to Bangladesh since December 2023 due to his mother’s illness, this is contradicted by his indication that he would further pursue his NRC if he is not repatriated shortly. This throws doubt on his willingness to return to Bangladesh and increase the likelihood of his abscondence.

(6) Overall, weighing the period of detention – around 155 days – against all the other factors, especially with the impending availability of a travel document, I am satisfied that HS2 and HS3 are met.

HS4

31.  I am satisfied that HS4 is satisfied as shown in the efforts undertaken by the Immigration Department as set out in paragraphs 13 – 17 hereinabove. I am thus of the view that the Director had diligently pursued the Applicant’s deportation. I have asked the Director to arrange a telephone conference with the Bangladesh CG and the Applicant so that any misunderstanding about the progress of the issue of his emergency travel document can be cleared up.

32.  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

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