RANA SOHEL v. HONG KONG SAR GOVERNMENT

HCAL 1405/2023

[2023] HKCFI 2436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1405 OF 2023

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D E C I S I O N

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A. Introduction

1.  The Applicant is the subject of a Removal Order made on 30 April 2014.  He has been held in immigration detention pending his removal from Hong Kong since 20 December 2021.  To the date of hearing, the period of detention has lasted 642 days or about 21 months.

2.  On 11 August 2023, he applied for writ of habeas corpus seeking his immediate release from detention.  I later gave leave for the Respondent to file a written response, and the necessary directions to bring the matter to today’s hearing.

3.  At the hearing, the Respondents were represented by Mr Alvin Hor, Senior Government Counsel (Ag.)  from the Department of Justice (“DOJ”).  The Applicant appeared in person with the benefit of a Bengali interpreter.

4.  This is my Decision.

B.  Background Leading to the Present Detention

5.  The Applicant is an illegal immigrant from Bangladesh who has been unlawfully staying in Hong Kong since February 2014, when he entered Hong Kong unlawfully.  As already identified at the introductory paragraph, a Removal Order was issued to him two months after his arrival.

6.  But similar to many illegal immigrants in his situation, he was able to resist removal and stay in Hong Kong for almost a decade, by raising what is now generally known as a ‘non-refoulement claim’ (“NRC”)  and then pursuing various applications over the years, both at the administrative level and then the court level, arising from the rejection of his NRC.

7.  Broadly speaking, under the relevant statutory regime and the then applicable removal policy, the effect of such NRC or related proceedings was to prevent the Government from removing a person from Hong Kong as long as his NRC or related legal proceedings were still ongoing. This explains his long stay in Hong Kong despite the Removal Order.

8.  On 15 October 2021, the number of NRC related applications and the circumstances in which they were made had reached the point where the Court considered it necessary to issue a ‘restrictive proceedings order’ (“RPO”)  to prevent further abuse of court procedures.  By the RPO, the Applicant has been prohibited from commencing any fresh proceedings or continuing with any existing proceedings relating his NRC without leave from the Court of First Instance (“CFI”).  Since then, the Applicant has tried three times to seek leave from the CFI to commence fresh NRC related proceedings, but all in vain.  The upshot is that he became and still remains ‘removable’ since 15 October 2021.

9.  It is against this background, the Director ceased the immigration recognizance previously granted to him on 20 December 2021 and commenced the present detention in preparation for his removal.

C.  Steps Towards Removal

10.  With the RPO imposed since October 2021, the sole obstacle standing in the way of removal when he was taken into custody in December 2021 was the need to replace his passport, which had expired in August 2017.

11.  The Director has only managed to procure such a document – known as ‘Travel Permit’ – for the Applicant on 13 September 2023, in more than 20 months after he was taken into detention.  But the delay in the issuance of the Travel Permit did not arise from the lack of diligence on the Director’s part.  The chronology clearly shows that the application process had been obstructed and thus lengthened by the Applicant’s refusal to cooperate.

12.  The Director first requested the Consulate General of the People’s Republic of Bangladesh to issue a travel document to the Applicant by letter issued on 20 October 2021, shortly after the RPO was imposed and before the present detention commenced.

13.  The Director’s effort to this end continued after the Applicant was taken into custody.  Indeed, right on the very first day of detention – 20 December 2021 – the Director already managed to secure from the Applicant the necessary documents to be submitted to the Consulate for the issuance of a travel document, being an application form, a consent letter and his photos.  By the end of December 2021, the Consulate had already verified the Applicant’s identity.

14.  As I understand it, by then, what remained of the application procedures was for the Applicant to go through a face-to-face interview with the Consulate.  But this step had proved to be an almost insurmountable obstacle since the Applicant consistently refused to do so. What happened since early 2022 to September 2023 could be summarized as follows:

(1)  The Applicant repeatedly indicated his unwillingness to return to Bangladesh, to cooperate in the removal arrangement or to attend an interview with the Bangladeshi Consulate.

(2)  Despite the Applicant’s expressed refusal to attend such an interview, the Director nonetheless arranged for such interview with the Consulate on three occasions, but all without success because the Applicant invariably refused to attend the interview on the scheduled dates.

(3)  The Director repeatedly requested the Bangladeshi Consulate to explore alternative means to issue a travel permit in the light of the Applicant’s uncooperativeness – i.e. to exempt the face-to-face interview requirement.

(4)  However, the Bangladeshi Consulate insisted on the face-to-face interview requirement despite the Director’s repeated request and the Applicant’s refusal to do so.

(5)  As such, no progress had been made for a very long time, until early September 2013.

(6)  In early September 2023, the Bangladeshi Consulate finally agreed to relax the face-to-face interview requirement – by substituting it with a phone interview.

(7)  But on the scheduled date of the phone interview on 12 September 2023, the Applicant still refused to conduct the same.

(8)  The Bangladeshi Consulate was eventually persuaded to issue the Travel Permit the next day, on 13 September 2023.

15.  The day after the Travel Permit was issued – 14 September 2023 – the Director purchased a flight ticket for the Applicant to send him back to Bangladesh.  The repatriation flight is fixed for 27 September 2023.

D.  The Applicant’s Submissions

16.  In support of his application, the Applicant exhibited to his affirmation a set of handwritten notes written in Bengali language, some typed up documents also in Bengali language, as well as his various application for his medical records and a memo issued by the Hospital Authority.  I have obtained English translation for those notes/documents in Bengali.

17.  The handwritten notes could be summarized as follows:

(1)  He set out the procedural history of his NRC and related proceedings and said that it would be a danger for him to return to his home country and his problem remains unresolved.

(2)  He emphasised that he had sought to make a ‘subsequent claim’, but it had been rejected.

(3)  He has various medical issues and keeping him in immigration detention has been causing those issues or at least has not been not conducive to the recovery from them.

(4)  He has problems in the eyes which has worsened since detention.  He was initially treated by doctors in the detention centre and later taken to see doctors outside and has been given eye drops or other medication.  But his situation is not improving.

(5)  He has problem in his left leg since he tripped over in the bathroom in the detention centre.  He was treated by doctors in the detention centre but that was not helping.  He still feels pain all the time.

(6)  He got infections in his toes.  He believes that was caused by the water and toilet in the detention centre not being clean.

(7)  Being detained gave him mental pressure and caused high blood pressure.  His blood pressure was normal before he was detained.

(8)  He could not have proper treatment in the detention treatment.  He once saw a detainee died because the doctor there failed to give him proper treatment.  He also saw another detainee who went blind despite his eye problem was being treated by doctors in the detention centre.

18.  The typed up documents, translated into English for me, apparently concerned the ‘problems’ he claims to have in Bangladesh.  I see no relevance in those documents to this habeas corpus application.  Insofar as those may pertain to his NRC or related proceedings, I shall disregard them since I am not asked to adjudicate on those claims or to consider whether he should be removed to his home country.  I would merely note that the Applicant has had numerous opportunities to establish his NRC, but has failed to do so.  The making of the RPO against him – and the several failures to raise claims despite the RPO – also identifies that his continued attempts have constituted an abuse.  The Applicant will be removed from Hong Kong – with arrangements made for that on 27 September 2023 – and the only relevant question on this current application is whether he has been and can continue to be lawfully detained until his removal.

19.  The memo issued by the Hospital Authority is dated 25 July 2023, from the Tuen Mun Eye Centre.  It says that the Applicant has a history of episcleritis, but the eyes were quiet with no episcleritis on the date of examination.  He had mild dry eyes only with Meibomian gland dysfunction, but the eye examination was otherwise unremarkable.

20.  At the hearing, the Applicant made further submissions.  He started by stating that he had a lot to say, but it soon turned out that much of what he intended to say was in repetition of what he had already said in the written materials filed in support of his application. Having been reminded that there was no need simply to repeat what was already in his written materials, unless he wished to make particular points of emphasis, the Applicant then more focused his submissions, albeit that a number of them were in questioning form.  They can be summarised as follows:

(1)  The Applicant asked under what law he could be detained for as long as 23 months.  (But, of course, he has received numerous notices of reviews of detention identifying the stated statutory basis for his detention pending removal.)

(2)  The Applicant handed to the court a number of medical documents, comprising several individual doctor’s notes of apparent diagnosis on dates in August and September 2023, and a Medical Certificate from the Tuen Mum Hospital granting him one day’s sick leave on 22 August 2023.

(3)  The Applicant complained that he was taken into detention without any notice, on a day when he thought he was simply going to sign recognizance.

(4)  The Applicant asked how it was that he could have been provided with a travel document, when he has not had an interview with the Consulate, which he believed to be a necessary precondition.  He confirmed that he was not prepared to cooperate or discuss the matter with the Consulate – again because of his problems back home.

(5)  The Applicant suggested that he was being detained because of his problems back home.

(6)  The Applicant made a last humble request that he begs his life from the Court, and suggested that the Court could save his life if it wanted to.

21.  Again, much of the focus of his submissions was on whether or not he should be removed from Hong Kong.  Again, I point out – as I pointed out to the Applicant during the hearing – that is not the question which arises on his habeas corpus application.  Other than that, I shall, as appropriate, take these matters into account to my consideration below (even if I do not specifically mention each point).

E.  Whether Detention has become unlawful

22.  The applicable principles in the present context are well established.  They have been summarized by the Court of Appeal in its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781.  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 any individual case.

23.  To start with, there was and remains clear prima facie lawful authority for the detention.  He has been detained under section 32(3A)  which authorizes the detention of a person against whom a removal order has been issued.  The Removal Order is extant.

24.  I do not believe that the Applicant is unaware of the legal basis and powers which are said to authorise his detention pending his removal pursuant to the Removal Order.

25.  But, the question then arises as to whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.  It is, of course, the Director’s burden to show that continued detention has been, and that it will for the reasonably foreseeable future continue to be, lawful.

26.  I can address the Hardial Singh principles broadly below.

27.  The starting point is the length of the detention – about 21 months – against which all the other factors must be weighed and balanced.  That is clearly a very substantial period of detention.

28.  Against the background set out above, I am satisfied that the Director always intends to remove him and has acted with reasonable diligence and expedition to that end.  There is nothing in the Applicant’s suggestion that he has been detained because of his problems in his home country.  Indeed, the Director must be proceeding on the authority that the Applicant has failed to establish any NRC, despite numerous attempts to do so.  HS1 and HS4 are satisfied.

29.  Whilst 21 months is obviously a substantial period of time, I have no difficulty in coming to the conclusion that that HS2 and HS3 have been met in the instant case.

30.  As reflected in the factual matters set out above, the period of detention has been unnecessarily lengthened by the Applicant’s refusal to attend an interview with the Bangladeshi Consulate.  I agree with Mr Hor that the Applicant could have chosen to attend the first face-to face interview scheduled on 23 March 2022 which would have enabled him to be removed shortly afterward upon the issuance of a valid travel document.  This detention could have been ended much earlier – perhaps as long as 16 months ago – but for the Applicant’s conscious decision to delay and prevent his removal. 

31.  It is, perhaps, telling that the Applicant seems aggrieved that the Consulate of his own country has seen fit to issue him with a travel document, notwithstanding his continuing attempts to frustrate that. The Applicant should be under no illusion: his attempts to frustrate in that way the practical ability to remove him under the Removal Order have come to an end.

32.  I place little weight on the Applicant’s medical conditions.  The medical memo he provided does not seem to suggest that he has any serious sickness with his eyes or that he has not received proper treatment whilst detained.  Indeed, the further medical documents handed up today seem to me, with respect, to relate to a number of relatively minor complaints.  As for his other complaints, there is no evidence to suggest that he has not been receiving proper medical treatments whilst detained except his own assertions. In any event, he will be released from detention upon repatriation in 5 days from now, where he will be able to procure appropriate medical treatment as he sees fit.

33.  Whilst the Applicant has no criminal record and no absconding history, I do not think these factors are sufficient to tilt the balance towards release on recognition.  In view of his expressed unwillingness to return, not least demonstrated in his persistent refusal to cooperate in the application for a travel permit, I agree with Mr Hor that there is indeed a real risk that he would not turn up in the airport for his removal 5 days from now.  Absconding would defeat the very purposes the powers for detention are granted in the first place.

34.  Overall, weighing the period of detention – around 21 months – against all the other factors including that repatriation is imminent and the Applicant should be released from detention 5 days later (albeit in Bangladesh), I am satisfied that HS2 and HS3 are met.

35.  In consequence, the period of detention to date has remained lawful at all times, and will remain lawful for the foreseeable future.

F.  Result

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