GURUNG SANTA BAHADUR v. DIRECTOR OF IMMIGRATION AND OTHERS

HCAL 1540/2022

[2023] HKCFI 212

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1540 OF 2022

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J U D G M E N T

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A. Introduction

1.  This is the Applicant’s second habeas corpus application within the span of about 3 months.

2.  The Applicant is the subject of a Removal Order and a Deportation Order issued under the Immigration Ordinance Cap 115 (“the Ordinance”).  He has been held in immigration detention since 6 December 2020 pending his removal from Hong Kong.  To the date of this hearing, the period of detention has lasted 773 days or around 2 years and 1 month.

3.  The Applicant’s first habeas corpus application – made in HCAL 897/2022 – was heard before me on 5 October 2022.  By then he had been in immigration detention for the already substantial period of 669 days.  I dismissed the application, holding that the detention had been and would remain for a period which would be reasonable.  The reasons for that are apparent in my Decision, [2022] HKCFI 3059. 

4.  The then expectation was that the Applicant would be removed on 14 October 2022, given that there were no obstacles to removal at that point and a repatriation flight had already been scheduled on 14 October 2022.  Plainly, that repatriation attempt was not successful and the Applicant has now come before me again asking to be released from detention.

5.  I gave directions for the Respondents to file an Initial Response, and so as to bring the matter to a hearing on 20 January 2023. At the hearing, the Applicant appeared in person with the benefit of a Nepali/English interpreter.  The Respondents were represented by Ms Yvonne Cheung, Senior Government Counsel.

B)  Factual Circumstances

6.  The Applicant’s background and the factual circumstances leading to the hearing on 5 October 2022 were set out in my decision on the first habeas corpus application in HCAL 897/2022, [2022] HKCFI 3059.  Rather than rehearsing all the details (which might be read), it is perhaps sufficient to offer a brief summary:

(1)  The Applicant is a Nepali national who has been overstaying in Hong Kong since 2013.

(2)  He is the subject of a Removal Order made on 29 December 2015 and of a Deportation Order made on 15 July 2022.

(3)  The Deportation Order was by reference to his conviction of trafficking in a dangerous drug for which he was sentenced to 2 years and 4 months’ imprisonment.

(4)  The Removal Order and subsequently the Deportation Order were not put into execution for years, because the Applicant raised a non-refoulement claim (“NRC”) in 2014.

(5)  By the 5 October 2022 hearing, his NRC had exhausted all the administrative avenues under the Unified Screening Mechanism, and his attempt to seek relief from the courts by way of judicial review had reached the stage where the Court of Appeal had refused leave for him to further appeal to the Court of Final Appeal (“CFA”).  There were then no outstanding NRC related legal proceedings.

(6)  The Director had liaised with the Consulate General of Nepal (“Nepal Consulate”) for the issuance of replacement document for the Applicant’s expired passport.  A one-way travel document for the Applicant was issued on 26 September 2022, permitting him to enter Nepal within 3 months from issue date.

7.  However, the repatriation scheduled on 14 October 2022 was aborted.  The events that transpired on that day are as follows:

(1)  The Applicant was transferred from Tai Tam Gap Correctional Institution (“TGCI”) to Castle Peak Bay Immigration Centre (“CIC”) for repatriation arrangement.  When he was interviewed, he indicated unwillingness to return and turned very emotional.  He said he would pursue his NRC by way of appeal.

(2)  Despite his unwillingness, he was escorted to the airport.

(3)  Upon reaching the airport, the Applicant turned emotional again and strongly resisted proceeding to the check-in counter. Having been counselled, he still refused to cooperate in returning to Nepal.

(4)  The Director then called off the operation.  The Applicant was then escorted to Ma Tau Kok Detention Centre.

8.  After the failed repatriation, numerous phone interviews had been conducted with the Applicant to ascertain his willingness to return to Nepal.  The Applicant consistently indicated unwillingness to return, and requested to be released from detention.

9.  Apparently the Applicant has filed a Notice of Motion (“NoM”) seeking leave from the Court of Final Appeal (“CFA”) at a later point.  I am not provided with a copy of the NoM.  But, on 28 December 2022, the CFA asked him to show cause by way of written submissions filed no later than 26 January 2023 as to why his application should not be dismissed. 

10.  As of today, the deadline for submissions to the CFA has not yet lapsed.  As I indicated in my previous Decision, the merits of the application to the CFA would appear to be very weak.  But, in any event, this is no longer considered a legal impediment to the Applicant’s removal under the Government’s updated removal policy, which came into effect on 7 December 2022. Under the new policy, as long as a claimant’s NRC related judicial review proceedings has reached the point resulting in a dismissal from the CFI which decision stands as valid on the day of removal, the existence of any further appeal from that decision would not be considered as an impediment.

11.  The previous one-way travel document expired after 25 December 2022.  However, the Director has liaised with the Nepal Consulate and a further one-way document has been issued on 10 January 2023, with validity until 9 February 2023.  The Director has scheduled a second repatriation attempt, which is to be effected on 28 January 2023.

12.  I am informed that in view of the Applicant’s resistance resulting in the abortion of the previous attempt, the Director is considering “forced repatriation” – which I suppose means that the Applicant would be escorted onto the aircraft regardless of his willingness.

C)  Applicable Principles

13.  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. 

14.  I will apply those principles as applicable to the particular circumstances of this case.

D)  Applicant’s Submissions

15.  Attached to his supporting affirmation for this application are 3 pages of handwritten notes on which the Applicant set out the grounds he would rely on.  After citing some Hardial Singh principles, the notes set out the following:

(1)  The Director detained him (wrongly) on the assumption that he was a criminal convicted of serious crimes.  His threat to the community is low.  He has never been a threat to the Hong Kong community and should not be detained for that purpose.

(2)  He has been detained since 6 December 2020 pending his removal.  It cannot be said that removal would be possible within a reasonable time.

(3)  He cannot leave Hong Kong until all his NRC related proceedings have been finalized.  Even his judicial review application was dismissed, he can still appeal up to the CFA.  Further, he also has the right to file a subsequent claim.

(4)  It is not lawful to remove him from Hong Kong until the final determination of his NRC.  The Director’s action to remove him will “block” his right to further appeal or to file a subsequent claim.

(5)  He has applied to the CFA and this should “stop” the Director’s attempt to remove him.

16.  As I understand it, one of the Applicant’s arguments seems to be that it will be unlawful to remove him from Hong Kong, until his NRC related proceedings are finally determined by the CFA.

17.  Arguments concerning whether it is lawful or not to remove him from Hong Kong are at best tangential to this habeas corpus application.  The central question with which this Court is seized is whether the Applicant should be detained or be released on recognizance pending his removal, rather than whether he should or should not be removed from Hong Kong.  Whilst the lawfulness of his removal may become relevant to the assessment of the likely timeframe within which he could be removed, there is currently no formal challenge to the execution of the Removal Order or the Deportation Order. 

18.  In any event, if the Applicant’s line of argument is that he is entitled to pursue his NRC all the way to the CFA (and perhaps have a second round by attempting to file a subsequent claim), the Applicant has not articulated the rationale, the rights or the legal grounds upon which such an assertion could be made.  I would also note that, as it now stands, his NRC has been ventilated up to the point that the CA has rejected granting leave to appeal to the CFA, and the merits of his further application appear very weak – a point with which the Registrar of the CFA agrees.

19.  At the oral hearing, the Applicant handed up some written submissions and made further submissions orally.  In summary, they were that:

(1)  He has been detained for a long period, and a period longer than some other detainees who have more, and more serious, convictions than himself.

(2)  He has only one conviction, which is not a conviction of violence, and has otherwise been of good behaviour (including in detention), so that he cannot be regarded as a security risk.

(3)  He has only jumped bail on one occasion, and so for that reason also cannot be regarded as a security risk.

(4)  Had he not failed to sign on that one occasion, he is sure that he would not currently be held in detention.

(5)  The reason why his previous application for habeas corpus failed was because (a) he had no legal experience and (b) he had no outstanding NRC or related legal proceedings.

(6)  He has, therefore, since taken out the application at the CFA, which remains outstanding, and prevents his removal.

(7)  Preventing removal whilst he has and ongoing legal proceedings is fair to him, and he wishes to stay in Hong Kong until the final outcome of the CFA application, and will also do whatever is needed for his appeal to be allowed, including finding a lawyer.

(8)  He has difficulty in finding legal assistance whilst in detention, but if he is given bail, he can obtain the persistence from a lawyer and obtain further information to improve the chances of his NRC proceedings.

(9)  He has applied for Legal Aid.

(10)  He refused to take the flight on the previous repatriation attempt for the single reason that at the time of deportation he had legal proceedings still on or available to him. 

(11)  In future, he will not say no to deportation after the result of his appeal has been reached. 

(12)  The lengthy period of detention has caused the mental stress.  He produced lengthy medical records, which mainly deal with physical ailments (and which tend to show the ready availability of medical attention, even whilst held in detention).

(13)  He has three potential guarantors, all present in court.  One of them is his fiancée.  He produced to the court letters from each of those potential guarantors, all of whom were willing to undertake to ensure the appropriate good behaviour of the Applicant, were he to be released on recognizance.

(14)  He is aware of other persons who have been released, notwithstanding the updated removal policy.

20.  I will bear all these points in mind in my overall assessment below and make references to them as appropriate.  However, it might be helpful to state at this point that the reason why the previous application failed did not turn simply on whether he had legal experience or had any outstanding NRC/JR claim, but because I considered that the lengthy period of detention to that date had not become unreasonable in all the circumstances, and so remained lawful.

E)  Whether Detention Has Become Unlawful

21.  The same core question arises in the context of this second application, namely whether the overall circumstances of the continued (and potentially continuing) detention of the Applicant have become (or will become) unreasonable, so that continued detention has become unlawful. 

22.  I would also point out that the decision turns on the particular facts and circumstances relating to the Applicant and his detention.  It is not likely helpful to make comparisons with other detained persons, who circumstances necessarily vary from one to another.

23.  For the period of detention running from 6 December 2020 to 5 October 2022, I will adopt my analysis in HCAL 897/2022 ([2022] HKCFI 3059).  I have decided there that the detention was and had remained lawful until that time.

24.  In my view, the further 3 months or so running from 5 October 2022 until today has not rendered the detention as unlawful, and the detention will remain lawful for a reasonable period until his removal.  I say so, notwithstanding that that 3-month period follows after the already substantial earlier period, and that it is the entire period that is now relevant as the starting point against which the other factors are to be weighed and balanced.  It is also important to keep in mind that the weight to be given to particular factors may vary over time.

25.  The Director plainly intends to remove the Applicant and is detaining him for that purpose.

26.  In HCAL 897/2022, I have already noted that the rather lengthy period of detention up to that point was a result of some of the Applicant’s self-inflicted obstacles.  His approach to his NRC and related proceedings was also fraught with his own delay.  This approach has continued, as evident from his further seeking leave to appeal to the CFA (apparently only around the time – perhaps even after – he frustrated the repatriation attempt on 14 October 2022).  Whilst the CFA has not yet disposed of the application, the Rule 7 summons asking the Applicant to show cause states that the Registrar of the CFA is of the opinion that the application discloses no reasonable grounds for leave to appeal.  In any event, under the updated policy, the outstanding summons is not an impediment to removal.

27.  I would also remark that the time for the Applicant to have obtained evidence and other materials in support of his NRC was long ago, and did not just arise in the context of his renewed application to the CFA.  Indeed, applications for leave to apply for judicial review, and all subsequent appellate steps, are not primarily concerned with the merits of the NRC itself – but with whether there is an arguable basis that there were public law failures in the decision-making process adopted by the Board (which gave its decision in this case on 16 August 2018).  Therefore, I do not think that the suggested practical difficulties arising from being detained are as weighty as the Applicant seems to suggest.

28.  Had the Applicant cooperated, he would have been released from detention already, some months ago on 14 October 2022, upon his return to Nepal.  The additional period of detention is mostly self-inflicted.  Nevertheless, the Director has continued to act with diligence in obtaining a new travel document for the Applicant, to facilitate removal on 28 January 2023.

29.  There remains a risk of re-offending if the Applicant were to be released on recognizance, and the potential impact of that is not low.  Whilst the Applicant has focused his submissions on the lack of any “security risk”, the real point relates to the risk and potential impact of further offending, whatever label that might be given.

30.  Further, perhaps more importantly, given the Applicant’s demonstrated resistance at the airport on 14 October 2022, his stated unwillingness to return, and his indication that he would not cooperate with any removal arrangement, I agree that there is a very considerable risk that he would not turn up on 28 January 2023 for the scheduled repatriation, which would frustrate the very purpose for which the detention power was conferred and exercised.  Therefore, I also reject the Applicant’s submission that he is only being detained because of the one occasion on which he jumped bail.

31.  I have considered the Applicant’s local connections and potential guarantors, but they do not weigh strongly in the balance so as to outweigh the factors in favour of continued detention.

32.  Assessing all the factors against the total detention period, and having taken into account that the repatriation has been scheduled for 28 January 2023 and the Applicant would be released from detention upon repatriation soon, I am satisfied that the detention has remained and will remain for a period which reasonable in all the circumstances and is lawful.

F)  Result

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