MANISH v. DIRECTOR OF IMMIGRATION

HCAL 620/2024

[2024] HKCFI 1641

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 620 OF 2024

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BETWEEN

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JUDGMENT

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A. Application

1.  By an ex parte application dated 8 April 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 an Indian national born on 24 August 1993 in India who entered Hong Kong on the strength of his Indian passport on 26 March 2011 and was permitted to remain as a visitor until 9 April 2011. However, he did not depart as required and had overstayed in Hong Kong since 10 April 2011.

3.  On 1 December 2011, a removal order (the “Removal Order”) was issued against the Applicant. On 25 May 2012, the Applicant was repatriated to India under the Removal Order.

4.  On 31 January 2014, the Applicant attempted to enter Hong Kong at Lok Ma Chau Control Point. He was refused permission to land in Hong Kong by the Director of Immigration (the “Director”) and repatriated to the Mainland on the same day. On 4 March 2014, the Applicant was arrested by the Police for being a suspected illegal immigrant. He claimed that he entered Hong Kong illegally from the Mainland on 2 February 2014. On 5 March 2014, he was referred to the Immigration Department (the “Department”) for further action and subsequently released on recognizance on 28 March 2014.

5.  On 26 August 2015, another removal order (the “2015 Removal Order”) was issued against the Applicant and remains valid.

6.  On 20 May 2024, a deportation order (the “Deportation Order”) was made against the Applicant on the basis of his various criminal convictions which remains valid.

7.  During the Applicant’s release on recognizance, he had been arrested and convicted of a number of offences. There are multiple occasions where he failed to report the Department’s recognizance, jumped court bail and was absent from court hearing for his criminal case. Recently, having gone underground for around 2 years and 5 months for failing to report immigration recognizance since 15 July 2021, he was re-arrested by Police on 14 December 2023 for being a wanted person. He was handed over to the Department on 16 December 2023 and transferred to the Castle Peak Bay Immigration Centre (the “CIC”) for detention under section 32(3A) of the Immigration Ordinance (Cap 115) (the “Ordinance”). On 12 June 2024, the Applicant was transferred to Tai Tam Gap Correctional Institution for detention.

8.  At the time of the hearing, the Applicant has been detained for 185 days.

C. NRC related proceedings

9.  Since 2011, the Applicant has taken out various applications / proceedings to pursue his torture claim / non-refoulement claim (the “NRC”). During his NRC proceedings, the Applicant had failed to attend the screening interview with the Department as well as the oral hearing of his NRC appeal held by the Torture Claims Appeal Board (the “TCAB”).

10.  The Applicant’s torture claim was refused by the Director of Immigration (the “Director”) in 2012 after his first arrival in Hong Kong.

11.  After his second arrival in Hong Kong, the Applicant indicated on 6 March 2014 his intention to lodge a NRC (the “2014 NRC”). This 2014 NRC was refused by the Director on 30 November 2016. The Applicant filed a late application on 13 January 2017 for appeal to TCAB for the refusal of his 2014 NRC. This appeal was dismissed by the TCAB on 9 April 2018 (the “TCAB Decision”).

12.  On 15 May 2018, by a Notice of Application for Leave to Apply for Judicial Review (the “Leave Application”), the Applicant seeks leave to apply for judicial review against the TCAB Decision.

13.  The Leave Application was dismissed by the Court of First Instance on 18 September 2020 (the “CFI Decision”). The Applicant further filed an application to extend time to appeal against the CFI Decision, which was subsequently dismissed on 19 January 2022.

14.  The Applicant filed a summons to the Court of Appeal for leave to appeal out of time against the CFI Decision. The decision is pending.

15.  According to the updated removal policy of the 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.

16.  There is thus no legal impediment to the Applicant’s removal.

D. Criminal Record & Sentencing and Abscondence Record

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

Date of Conviction	Offence	Sentence
2 June 2015	Possession of dangerous drug	fined $1,000
20 July 2015	A. Possession of offensive weapon	3 months’ imprisonment
	B. Criminal intimidation	4 months’ imprisonment run concurrently to A
	C. Indecent assault	2 months’ imprisonment (2 weeks run consecutively to A and B)
30 September 2016	A. Theft	10 months’ imprisonment
	B. Possession of a false instrument	8 months’ imprisonment (5 months run consecutively to A)
8 April 2021	Remaining in Hong Kong without the authority of the Director after having landed unlawfully in Hong Kong	10 months and 17 days’ imprisonment

18.  After having been released on recognizance, the Applicant had repeatedly failed to report to the Department’s recognizance / jumped court bail and had been absent from court hearing for his illegal remaining offence. There were a total of 12 occasions of abscondence / absence from the court hearing between 2012 and 2021. For most of the occasions of abscondence / absence, he only resurfaced after being arrested by the Police as a wanted person or for further committing criminal offences. The Applicant could not provide any justified reasons for his abscondence / absence. The court did not accept the Applicant’s explanation for his repeated absence and refused all of his subsequent bail applications. The Applicant was ordered to remand in jail custody with no bail was allowed for five times until the criminal proceedings were completed. The relevant abscondence records are summarized as follows:

	Period of Abscondence from Recognizance /Court Bail	Duration / Remarks	Claimed Reason
1.	20 March 2012 to 10 April 2012	Around 1 month	Sickness
2.	22 May 2015 to 20 July 2015	Around 2 months	Technical reason – detained by Police
3.	23 October 2015 to 25 June 2016	Around 8 months	Sickness
4.	4 July 2018 to 6 August 2018 (from court bail)	Around 1 month	No reason being given
5.	14 August 2018 to 16 January 2020	Around 1 year and 5 month (except turning up at the office of Duty Lawyer Service on 10.9.2018 but then absconded again on the same day)	Fear of being arrested
6.	15 July 2021 to 14 December 2023	Around 2 years and 5 months	Sickness

19.  The Applicant had time and again been absent from Court hearings:

	Date for Hearing	Court Order	Claimed Reason
1.	4 September 2017	Warrant of Arrest issued	Sickness
2.	4 September 2018	Warrant of Arrest issued	Fear of being arrested
3.	10 September 2018	Warrant of Arrest issued	Fear of being arrested
4.	16 July 2020	Warrant of Arrest issued	No reason being given
5.	19 October 2020	Only Duty Lawyer Service attended hearing and case was further adjourned	Sickness
6.	27 October 2020	Warrant of Arrest issued	Sickness

20.  Subsequently, the court had refused all of the Applicant’s applications for bail on 22 December 2020, 30 December 2020, 14 January 2021 and 11 February 2021 and the Applicant had been remanded in jail custody until his sentencing on 8 April 2021.

E. Steps towards Removal

21.  The Applicant was in possession of an Indian passport which was expired on 15 June 2020. Prior to the present detention, the Director has been liaising with the Consulate General of India (the “Consulate”) since 23 June 2021 to confirm the Applicant’s identity and renew his travel document for his repatriation.

22.  On 9 August 2021, the Consulate confirmed the particulars on the Applicant’s expired passport were consistent with their record and his re-entry to India was assured.

23.  During the present detention since December 2023, the Director has conducted various interviews with the Applicant and assured his incentive to return to India. However, the Applicant has shown unwillingness to return to his home country and refused to completed re-entry application form, take passport photo and attend interview with the Consulate. There were five occasions[1] where the Department conducted interviews with the Applicant, in which he expressed unwillingness to return to India and refused to cooperate with any removal arrangement.

24.  The Director maintained close liaison with the Consulate on any possible alternative means to issue the Applicant a travel document regardless of his uncooperative attitude[2]. The Consulate replied that a duly completed application form, photos and in-person interview at the Consulate are necessary for the emergency travel document application of the Applicant.

25.  On 23 May 2024, about 3 weeks before the hearing of the present application, the Department was informed that the Applicant had changed his mind and indicated his request to go to the Consulate for passport renewal.

26.  On 24 May 2024, the Department immediately conducted a phone interview with the Applicant, during which he expressed willingness to return to his home country and requested to be released on recognizance for few days for meeting with his girlfriend and two daughters in Hong Kong.

27.  On 28 May 2024, the Department conducted an in person interview with the Applicant by the assistance of an interpreter, in which he changed his mind again and refused to be removed. Notwithstanding this, the Department had already successfully secured a duly completed application form and passport photos from the Applicant after the interview.

28.  On 29 May 2024, less than one day after the in-person interview conducted 28 May 2024, the Department was informed that the Applicant had changed his mind once again and requested to return to his home country.

29.  On 30 May 2024, the Department submitted the duly completed application form and passport photos to the Consulate for the Applicant’s emergency travel document application.

30.  On 3 June 2024, the Department conducted an in-person interview with the Applicant. During the interview, the Deportation Order and the Notice of Detention under section 32(3) were served on him. However, he refused to sign on such documents and adamantly refused to return to his home country and would not cooperate with any immigration removal arrangement.

31.  On 7 June 2024, the Applicant attended interview with the Consulate. It is estimated that an emergency travel document would be issued within 1 month as all the requirements have been met.

F. Applicable Principles

32.  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.

33.  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

34.  The Applicant has set out his grounds for application in his affirmation dated 14 April 2024. In summary, they are as follows:

(1) He has back pain and no one is taking care of him in detention.

(2) The Applicant has to take care of his two children in Hong Kong as his wife (later called as girlfriend) is in poor health condition;

(3) The Applicant has an outstanding Police case and on bail condition.

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

(1) He wished to withdraw his application and asked for a refund.

(2) Upon having been informed that a refund is not possible, he proceeded with the application.

(3) He could provide a permanent address and bail money.

(4) He had always indicated his desire to go back since detention but that was not accepted by the Department.

(5) The Department had withheld the return of his expired passport to the Consulate and that delayed his return to India.

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

H. Lawful Authority for Detention?

37.  The 2015 Removal Order and Deportation Order were issued on 26 August 2015 and 20 May 2024 respectively and remain valid. The Applicant has been detained under:

(1) Section 32(3A) of the Ordinance from 16 December 2023 to 2 May 2024;

(2) Section 29(1) of the Ordinance from 2 May 2024 to 15 May 2024;

(3) Section 29(2) of the Ordinance from 16 May 2024 to 20 May 2024;

(4) Section 32(3) of the Ordinance from 20 May 2024 to 17 June 2024,

which in total is a period of 185 days (around 6 months) by the time of the hearing.Thus, there was and remains clear prima facie lawful authority for the detention.

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

I. Whether Detention has become unlawful

39.  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”).

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

HS1

41.  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

42.  The starting point is the length of the detention – about 6 months (185 days) – against which all the other factors must be weighed and balanced.

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

(1) There is no dispute that despite having indicated for brief periods of time that he was willing to be repatriated, the Applicant’s attitude is repeated unwillingness to return to India. Even at the hearing, the Applicant had indicated both his desire to go back to India but at the same time asked not to be returned due to his children in Hong Kong.

(2) It thus lies ill in the Applicant’s mouth to complain that the detention period was and will be unreasonable. He had only indicated his willingness to return 3 weeks before the hearing (and subsequently having repeatedly changed his mind again). The length of the current detention was at least partly attributable to the Applicant’s refusal to be removed. In Johnson Benjamin v Director of Immigration & Secretary for Security[3], the Court of Appeal observed at §29(3) that:-

“In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee’s own unreasonable behaviours or conducts should not be counted or regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are other circumstances to show otherwise. This is so, as if otherwise, it would result in an absurd situation where the more unreasonably and uncooperatively a detainee behaves in seeking to frustrate or delay the procedures or process necessary to prepare for his removal, the more likely he is to be released. That cannot be the intention of the Hardial Singh principles.”

(3) The Department has been informed that the emergency travel document is likely to be available within a month, after which the Applicant can be removed as soon as possible.

(4) There is no substance to the allegation that the Department had deliberately withheld his expired passport in order to delay the issue of his new travel document. In any event, I have asked the Department to file an affirmation setting out when the expired passport was returned, to ease the Applicant’s concern.

(5) Despite the Applicant’s allegation that he has two children in Hong Kong, the Applicant’s history of abscondence, together with the Applicant’s clear attitude that he is unwilling to be repatriated indicate a real risk of abscondence.

(6) The risks of abscondence is of critical and paramount importance in the assessment of the lawfulness of detention. As recognised by the Court of Appeal, if a person absconds, it will defeat the primary purpose for which the power to detain has been conferred[4].

(7) The Director had confirmed with the Police that there was no outstanding criminal case against the Applicant.

(8) Concerning the medical request by the Applicant, he had received the last medical consultation by the in-house Medical Officer (“MO”) at CIC on 23 May 2024. The MO informed that the Applicant’s health condition was stable. There is no evidence supporting the Applicant’s allegation that he cannot receive medical care whilst in detention.

(9) Overall, weighing the period of detention – around 6 months – against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

44.  I am satisfied that HS4 is satisfied for the following reasons:

(1) The Director had all along, even before the commencement of the Applicant’s detention on 16 December 2023, sought the assistance of the Consulate to issue the Applicant with a travel document upon discovering that his passport had expired.

(2) I am of the view that the Director had diligently pursued the Applicant’s deportation as set out in paragraphs 21 – 31 above.

45.  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

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

47.  In view of the Applicant’s desire to go back to India as soon as possible, I have directed the Department to follow-up with the Consulate with the progress of the issuance of the passport.