SHARIFUL ISLAM v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1937/2023

[2023] HKCFI 3138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1937 OF 2023

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JUDGMENT

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A.  Application

1.  By an ex parte application dated 27 October 2023, 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 Immigration Department.

B.  Background of Applicant

2.  The Applicant is a Bangladesh national born in 1986 who was arrested for remaining in Hong Kong illegally on 6 November 2011. He raised a non-refoulement claim (“NRC”) on 8 November 2011.

3.  He was released on recognizance on 16 December 2011.

4.  The Applicant’s passport had expired on 23 May 2014.

5.  On 20 April 2016, a removal order was issued against the Applicant (the “Removal Order”).

6.  The Applicant failed to report recognizance on 24 September 2021 and had absconded until he was arrested by the police on 16 January 2023. The Applicant has since 17 January 2023 been detained under section 32(3) of the Ordinance pending his removal under the Removal Order.

7.  At the time of the hearing, the Applicant has been detained for 318 days.

C.  NRC related proceedings

8.  The Applicant’s NRC was based on alleged fear of being harmed by the Awami League, as he is a member of the Bangladesh Nationalist Party, the opposing party.

9.  The Director of Immigration (the “Director”) rejected the Applicant’s NRC on 11 March 2016 and 25 November 2016 by two notices of decision (the “Director’s Decision”). The Applicant’s appeal to the Torture Claims Appeal Board against the Director’s Decision was dismissed on 1 March 2018 (the “TCAB Decision”).

10.  The Applicant’s application to the Court of First Instance for leave to apply for judicial review against the TCAB Decision was dismissed by the Form CALL-1 in HCAL 374/2018 dated 4 September 2019 (the “JR Decision”).

11.  The Applicant’s appeal against the JR Decision to the Court of Appeal was dismissed on 28 May 2020.

12.  The Applicant’s application for leave to appeal to the Court of Final Appeal was dismissed on 30 July 2020.

13.  The Applicant then made a subsequent claim on 28 September 2020, which was dismissed by the Director on 29 July 2021. The Court of First Instance refused to grant leave to the Applicant to apply for judicial review against the Director’s refusal of the subsequent claim and made a Restricted Proceedings Order (the “RPO”) against the Applicant on 17 September 2021, prohibiting him from commencing any fresh proceedings in relation to his NRC without leave of the CFI.

14.  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.

15.  There is thus no legal impediment to the Applicant’s removal due to any outstanding NRC related proceedings.

D.  Record of Abscondence

16.  The Applicant failed to report recognizance since 24 September 2021 after the issuance of the RPO against him. He was re-arrested on 16 January 2023.

E.  Steps towards Removal

17.  There is no dispute that the only practical obstacle to removal is the need to obtain a travel document to replace the Applicant’s expired passport.

18.  The Applicant had since January 2023 repeatedly indicated his unwillingness to return to Bangladesh via not less than 10 phone interviews/interviews. He had further refused on 3 March 2023 and 7 March 2023 to complete a re-entry application form or to attend the interviews with the Consulate General of the People’s Republic of Bangladesh (the “BGD CG”). On 7 March 2023, the Applicant explained that he had failed to report recognizance in September 2021 because he knew that his NRC had been dismissed and he was worried that he would thereafter be detained pending removal.

19.  Since the Applicant’s detention on 17 January 2023, the Immigration Department had on 31 January 2023, 3 May 2023, 28 June 2023, 21 August 2023 requested the assistance of the BGD CG in issuing the Applicant a valid travel document for repatriation purposes.

20.  In particular, on 3 May 2023, the Immigration had asked whether there were any alternative means for the travel document to be issued when the Applicant continued to refuse to co-operate in the formalities. The BGD CG replied on 21 August 2023 that the completion of the re-entry form and re-entry seeking interview were required.

21.  The Applicant only first indicated his willingness to return to Bangladesh on 27 September 2023 and he had co-operated in carrying out the necessary formalities on 4 October 2023. An interview with the BGD CG was arranged on 16 October 2023.

22.  The Consul of the BGD CG initially indicated on 20 October 2023 that the processing time for the issuance of the travel document would be around 3-6 months upon fulfilment of all requirements. A follow-up enquiry was made by the Immigration Department on 15 November 2023 and the BGD CG indicated that the Applicant’s application is currently under active processing by the department in Bangladesh and the expected processing time for the travel document would be 3 months. The BGD CG was requested to provide urgent assistance for the issue of the Applicant’s travel document.

F.  Applicable Principles

23.  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.

24.  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

25.  The Applicant has set out his grounds for application in his affirmation dated 27 October 2023. In summary, they are as follows:

(1)  He had been detained for more than 10 months.

(2)  There is no possibility to remove him within a short reasonable time.

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

(1)  He is willing to go back but the BGD CG indicated that it would take 6 months to prepare his travel document.

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

H.  Lawful Authority for Detention?

28.  The Removal Order was issued on 20 April 2016 and remains valid. The Applicant has been detained from 16 January 2023 to 29 November 2023 (318 days) under section 32(3A) which permits the detention of a person against whom a deportation order is in force pending his deportation from Hong Kong.

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

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

I.  Whether Detention has become unlawful

31.  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/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”); and

(4)  The Secretary/Director should act with reasonable diligence and expedition to effect removal (“HS4”).

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

HS1

33.  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

34.  The starting point is the length of the detention – (318 days) – against which all the other factors must be weighed and balanced.

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

(1)  There is no dispute that from the very beginning of the Applicant’s detention in January 2023, the Applicant has repeatedly refused to co-operate in obtaining a valid travel document to enter Bangladesh.

(2)  T here is nothing to indicate that but for the Applicant’s repeated refusal to co-operate in obtaining a valid travel document, there was any further obstacle to his repatriation, hence release from detention.

(3)  The Applicant only indicated that he was willing to return to Bangladesh on 27 September 2023, after 9 months of detention. In view of the BGD CG’s reply that a re-entry form and re-entry interview are required before a travel document can be issued, it can be said that the first 9 months out of the total length of the current detention was solely attributable to the Applicant’s self-inflicted hindrance. It thus lies ill in the mouth of the Applicant to complain about the length of that period of the detention. His conscious and deliberate refusal to co-operate had led to the impossibility of earlier deportation. The Applicant should not be allowed to rely on a self-imposed obstacle in arguing that the detention has become unreasonably long. This is a significant factor that has been taken into account. In fact, given the BGD CG’s indication, he would in all likelihood have already been released and be back in Bangladesh if he had co-operated upon the commencement of his detention.

(4)  I am satisfied that with the indication from the BGD CG that the travel document is expected to be available within 3 months, there is sufficient prospect of removal within a reasonable timescale. The Immigration Department has also indicated that regardless of the 3-month indication, they would continue to liaise with the BGD CG to ensure that a travel document can be issued as soon as possible. The Immigration Department has also agreed to update the Court if the removal of the Applicant is not successful by February 2024.

(5)  The Applicant has not been convicted of an offence and hence the risk of re-offending is not relied upon.

(6)  On the other hand, however, given the Applicant’s clear attitude in the past that he was unwilling to be repatriated, the risk of absconding is real. He had in fact already absconded once in 2021 for 15 months right after the RPO was issued against him. The reason for the abscondence was precisely the fear of being repatriated. With no local connection and the past history, I consider the risk of abscondence to be high. If the Applicant absconds again, it would defeat the primary purpose for which the power to detain has been conferred.

(7)  Overall, weighing the period of detention – around 318 days – against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

36.  I am satisfied that HS4 is satisfied as shown in the efforts undertaken by the Immigration Department as set out in paragraphs 19 – 22 hereinabove. I am thus of the view that the Director had diligently pursued the Applicant’s deportation.

37.  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

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