KASHAV RAJ AMIT v. DIRECTOR OF IMMIGRATION

HCAL 1461/2023

[2023] HKCFI 2464

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1461 OF 2023

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DECISION

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A.  Introduction

1.  The Applicant is subject to a Removal Order made on 14 August 2014, under section 19 of the Immigration Ordinance Cap 115 (“Ordinance”). He has been held in immigration detention from 26 April 2023 to date – a period of 157 days, or approximately 5 months – under section 32(3A) of the Ordinance, pending his removal from Hong Kong.

2.  On 21 August 2023, the Applicant filed this application, seeking a writ of habeas corpus and his immediate release from detention. I gave directions for the Director to file an initial response, and so as to bring the matter to today’s hearing.

3.  At the hearing, the Applicant has appeared in person, with the benefit of an interpreter. The Director has been represented by Mr Frenki Fung, Government Counsel, who signed the initial response.

4.  This is my Decision.

B.  Background

5.  The Applicant is an Indian national born on 3 August 1990. The Applicant arrived in Hong Kong on 30 December 2013, on the strength of his then Indian passport, and was granted permission to stay as a visitor until 13 January 2014. Since that date, he has overstayed in Hong Kong.

6.  A Removal Order was made against the Applicant on 14 August 2014.

7.  Whilst an over stayer, the Applicant sought asylum status and lodged a non-refoulement claim (“NRC”) under the United Screening Mechanism.

8.  On 31 January 2018, the Director refused the Applicant’s NRC. On 24 January 2019, Applicant’s subsequent appeal/petition was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”).

9.  On 19 April 2023, the Applicant’s application for leave to apply for judicial review of the Board’s decision was dismissed by the Court of First Instance (“CFI”). Since that date, there has been no legal impediment to the Applicant’s removal – in accordance with the Government’s updated removal policy, which took effect from 7 December 2022.

10.  Following the CFI’s dismissal of the Applicant’s application for leave to apply for judicial review, it was decided upon review to cease the Applicant’s recognizance and to detain him under section 32(3A) of the Ordinance, pending his removal.

11.  Further reviews of detention have been conducted, and on each occasion the Director has considered that there were grounds for continued detention, and not to recommend release on recognizance, essentially because: (1) the Applicant’s removal from Hong Kong is imminent; (2) the Applicant expressed unwillingness to leave; but (3) there are no outstanding claims or legal proceedings impeding removal; and (4) there are no other circumstances favouring the Applicant’s release.

12.  The Applicant’s Indian passport expired on 20 November 2021. Initially, the Applicant refused to complete the necessary documents to facilitate obtaining an emergency travel document (“ETD”). More recently, the Applicant was provided by the Indian Consulate General with an ETD, with a period of validity from 28 July 2023 to 27 January 2024. This followed a change in the Applicant’s attitude towards cooperating – indicated in a detainee’s submission sheet dated 9 May 2023 – and following the Applicant’s completion of the relevant travel document application form on 2 June 2023.

13.  Though the Applicant now has the ETD, it can be said that the time taken in obtaining it was contributed to by the Applicant’s previous refusal to cooperate.

14.  However, after the issuance of the ETD, the Applicant has again changed his stance and has since then consistently showed unwillingness to return to his home country.

C.  Applicable Principles

15.  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.

16.  The burden is on the respondent to an application for habeas corpus to justify the continued detention as remaining lawful.

D.  Applicant’s Submissions

17.  As well as some standard references to previous authorities in habeas corpus cases – of the sort apparently routinely added to the materials filed with many similar applications – the Applicant did make some submissions with specific reference to his own position. Those submissions might be summarised as follows:

(1)  The detention has continued for a period which is unreasonable in all the circumstances.

(2)  The respondents cannot say how they will affect his removal.

(3)  He was taken into detention on 26 April 2023 without prior notification, when he went to report recognizance as usual.

(4)  The officer ignored being told that the Applicant had filed a JR appeal on 24 April 2023, and that he had a marriage date fixed.

(5)  He does not feel well in detention; the medicines are not suitable, and the food is not suitable for him.

(6)  He has no criminal record in Hong Kong, and because he is not a criminal he should not be detained. (In passing, I note that part of the ‘boilerplate’ submissions attached to the application actually purport to admit to being convicted of multiple counts of various types of criminal offence, but say sentences for each have been served.)

(7)  Other detainees who have criminal records have nevertheless been released.

18.  The written materials also contain arguments which are more properly advanced in support of a NRC. Complaints are made about the procedural fairness of the decision made by the Director and the Board. Repeated assertions are made as to the hardship the Applicant would face if returned to his home country. With respect, these submissions are not relevant to the central question on an application for habeas corpus. That question is simply whether the Applicant can continue to be lawfully detained pending his removal from Hong Kong.

19.  At the hearing, the Applicant originally suggested he had questions to ask his case officer, but the questions or points he wished to put to the case officer were – as I informed him – capable of being taken into account for the purposes of this application. His questions and submissions might be summarised as follows:

(1)  If immigration laws are to be applied to everyone equally, the Applicant asked why he has been treated differently.

(2)  Whilst he has been detained, quite a number of other people have been released in applications to the High Court made before his.

(3)  Even persons with RPOs against them have been released.

(4)  Though it is suggested he has no fixed abode in Hong Kong, he has lived at the same address for 9 to 10 years.

(5)  He also has no criminal record, and this is the first time he has been in detention.

(6)  The Applicant’s appeal is still pending, having been issued on 24 April 2023, shortly before he was detained on 26 April 2023.

(7)  He was taken into detention without any prior notification, and was misled as to the purpose that he was invited to speak to an officer. That is akin to kidnapping, not detention

(8)  On the day after he was detained, he was due to submit documents for his intended marriage at the Registry, but the immigration officers refused to permit him to attend.

(9)  He has been pressed to identify his girlfriend/fiancée, but he has refused to do so because that information is private.

(10)  He requests to be released, so that he can seek medical attention, as the medical attention available in CIC is insufficient (as evidenced by the fact that other detainees have passed away in the past years whilst in detention).

(11)  Also, he remains in danger in India, so cannot go back.

20.  As has been made clear in numerous previous decisions, the last submission is not really relevant to this current application for habeas corpus. On this application, the Court is not deciding whether the Applicant should or should not be removed back to India. Rather, it is deciding whether the Applicant has been lawfully detained, and can continue to be lawfully detained in the foreseeable future, pending his removal.

21.  Further, whilst the inconvenience and surprise of being suddenly taking into detention without prior notice can be appreciated, I do not think that gives rise to any direct implication as to the lawfulness of the detention. Person such as the Applicant are released on recognizance, but are always subject to potential ceasing of recognizance, to be detained where appropriate under a power granted by the Ordinance.

22.  I will take the other points raised by the Applicant into the weighing and balancing exercise, conducted below (even if I do not expressly reference each of the points).

E.  Whether Continued Detention Has Become Unlawful

23.  There is clear prima facie lawful authority to detain the Applicant, to be found in section 32(3A) of the Ordnance, which empowers detention of a person subject to removal order pending his removal from Hong Kong. The Removal Order made against the Applicant remains valid and extant.

24.  Therefore, the question arises as to whether the overall circumstances of detention have become unreasonable, and hence unlawful. The starting point is to recognise the length of the detention to date, namely 157 days (approximately five months) – against which the various other factors must be weighed and balanced in the assessment of reasonableness.

25.  It seems to me to be clear that the Director has at all times during the detention intended to remove the Applicant from Hong Kong, and has detained him solely for that purpose. Indeed, recognizance was ended, and the detention began, specifically for that reason, once the legal impediment to removal had ended. HS1 is satisfied.

26.  I also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal. HS4 is satisfied.

27.  By the time of the commencement of the detention, there was no legal impediment to removal. The real potential obstacle to removal was the practical one of the need to obtain a replacement travel document. Had the Applicant chosen to cooperate in completing the re-entry formalities, the ETD might have been issued earlier, and so the Applicant could have been removed (and hence released from detention) earlier. To an extent, therefore, the Applicant has contributed to the length in detention, which factor I take into account and give weight.

28.  For the avoidance of doubt, I do not think a traffic offence committed by the Applicant, which led to a fine of $500 on 21 September 2023, gives rise to any real impediment to removal. The payment of a fine does not require the Applicant’s presence in Hong Kong, and he has in any event said that his friend would pay the fine for him. I do accept, however, that it may have been appropriate for the Director to seek to resolve this matter before making arrangements for removal of the Applicant – which were then swiftly made.

29.  As to risk of absconding, I acknowledge the apparent lack of any history of absconding on the part of the Applicant. Nevertheless, the Director says that the Applicant revealed that he had a fiancée in Hong Kong only after he changed his stance and showed unwillingness to return to India – and not as soon as he was taken into detention. Whether that is correct or not, the Applicant has refused to provide his fiancée’s information, and has therefore not demonstrated any real local connection to give rise to a factor of any real weight. Having previously accepted that it was safe for him to go back to India on 8 May 2023, he subsequently changed his mind. His overall recent unwillingness to return, coupled with his varying attitude to cooperation, seems to me to identify some risk of absconding. I acknowledge the Applicant’s submission that his thinking has been affected from time to time by the impact of detention, but I do not think that changes the analysis. The risk of absconding certainly is not as high as in many other cases, but it cannot be considered low. Absconding would defeat the primary purpose of effecting removal, for which the power to detain has been conferred.

30.  I take into account that the does not seem to me to be any real risk of offending.

31.  As to the Applicant’s claimed health issues, I do not think there is any reason to believe that the Applicant would not receive appropriate medical attention either within the detention facility, or at external medical service providers if necessary. Therefore, I do not think this is a factor of any great weight in the balancing exercise.

32.  In any event, I note that the Director has now arranged a repatriation itinerary, obtained on 7 September 2023, for the Applicant to take a flight on 3 October 2023 (namely next Monday). On that basis, there is a clear fixed timeline within which there is a reasonable prospect of removing the Applicant from Hong Kong, and hence effecting also his release from detention (albeit in India).

33.  In the above circumstances, HS2 and HS3 are also satisfied.

34.  Overall, weighing and balancing all the factors against the period of detention to date – namely 157 days – and the imminent removal of the applicant from Hong Kong, and hence his release, I am satisfied that the detention has continued, and will for the foreseeable future continue, to be reasonable in all the circumstances and hence lawful.

F.  Result

35.  The Applicant’s application for writ of habeas corpus is dismissed, with no order as to costs.