CHARANJIT BAINS v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 175/2024

[2024] HKCFI 693

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 175 OF 2024

_______________________________

BETWEEN

_______________________________

________________________

DECISION

________________________

1.   Introduction

1.1  The Applicant is subject to a Removal Order and a Deportation Order respectively made on 13 August 2007 and 16 February 2022. He has been held in immigration detention since 9 February 2021 pursuant to various sections of the Immigration Ordinance (“Ordinance”). As at the date of the hearing before me, the Applicant has been detained for 1121 days (around 3 years and 1 month).

1.2  The present application for a writ of habeas corpus, made on 18 January 2024, is the second application by the Applicant. The Applicant’s first application was dismissed by Coleman J on 19 December 2022 (“Previous Judgment”)[1]. At the time of the Previous Judgment, the Applicant had been detained for 679 days (approximately 1 year and 10 months).

1.3  At the hearing, the Applicant, appeared in person, with the benefit of the interpreter. Ms Angel Zhi, Government Counsel, informed me that the Director of Immigration (“Director”) and the Secretary for Security (“Secretary”) are the proper Respondents to the present application. I proceed on that basis.

1.4  The Applicant confirmed that the relevant facts are accurately set out in the Reasons for Judgment handed down on 21 December 2022 (“Previous Reasons”). Those factual matters will be analyzed afresh, in the light of the now lengthier period of detention, together with the developments which have taken place since the Previous Decision.

1.5  It is pertinent to note at the outset that as at the date of the Previous Reasons, the Applicant’s non-refoulement claim (“NRC”) was at the stage where there was to be a hearing before the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”). At Previous Reasons §49, Coleman J remarked that the situation might change after TCAB’s decision, not least against the already quite lengthy period of detention and that any future assessment and balancing exercise would have to take place to take into account any change of circumstances and the changed length of detention.

2.   The relevant factual background

2.1  I refer to section B of the Previous Reasons which set out the Applicant’s immigration status, criminal record, NRC and reviews of detention. The following matters are highlighted.

2.2  The Applicant was from August 2007 to November 2018 referred to the Immigration Department on 11 occasions, on 10 occasions following his discharge from prison following his previous convictions, and on 1 occasion after his arrest by the police after failing to report recognizance.

2.3  The occasion of failing to report recognizance was on 17 September 2012. The Applicant was eventually arrested by the Police for the offence of common assault on 1 December 2012, when the Applicant explained that he had no money for travelling to the reporting centre and thus missed the reporting date.

2.4  The Applicant’s lengthy criminal record relates to past convictions in Hong Kong, all of which occurred during previous releases on recognizance. As has been summarized at Previous Reasons §12, the Applicant had been convicted on multiple occasions for indecent assault, common assault and shoplifting. He had also been convicted for attempted robbery and fighting in a public place.

2.5  As regards the Applicant’s NRC and related proceedings, their developments are set out at Previous Reasons §§13-25. As at the date of the Previous Reasons, it will be noted that the Applicant’s NRC had not been substantively determined by the TCAB. TCAB had declined to entertain the Applicant’s appeal against the refusal of his NRC by the Director out of time. On 23 June 2020, the Applicant was granted leave to apply for judicial review by the Court of First Instance, on the basis that the TCAB had not considered the merits of the Applicant’s case when refusing the late filing of appeal.

2.6  Previous Reasons §§18-24 set out the Applicant’s delay in pursuing his judicial review, the Department of Justice’s attempt to expedite the judicial review by its disposal by consent, and once the Court of First Instance had by consent remitted the matter back to the TCAB for fresh determination, the Immigration Department’s requests to the TCAB to expedite the processing of the Applicant’s application. As at the date of the Previous Reasons, the TCAB was to hear the Applicant’s NRC substantively on 29 December 2022 (ie 10 days after the hearing before Coleman J).

2.7  Previous Reasons §§26-31 set out the reviews then carried out in respect of the Applicant’s detention and his refusal to render cooperation to obtain an emergency travel document. The reasons then given against releasing the Applicant from detention were (1) his removal was going to be possible within a reasonable time, (2) he posed or was likely to pose a threat or security risk to the community, (3) he may abscond, (4) he did not have close connection or fixed abode in Hong Kong and (5) there were no other circumstances in favour of his release. In reaching the above views, the following factors were, inter alia, taken into account:

(1) The Applicant had convictions associated with crimes of a serious nature, and he posed a threat or security risk to the community having regard to his 15 prior convictions. He also had previous records of being re-arrested during recognizance.

(2) The Applicant has a series of previous convictions of criminal and/or immigration offences and has recommitted the same offence in respect of his previous arrests.

3.   Developments since the Previous Reasons

3.1  As the Applicant has been kept in detention since the Previous Reasons, the relevant developments since are the progress of his NRC, his attitude towards repatriation and the reviews since carried out in respect of his detention.

3.2  As regards the Applicant’s NRC, following a hearing on 28 December 2022[2], the TCAB dismissed the Applicant’s NRC on 13 January 2023 (“TCAB’s Decision”). It was only on 1 February 2024, some 10 months out of time, that the Applicant filed his application for leave to apply for judicial review against the TCAB’s Decision (HCAL 257/2024). On 9 February 2024, the Court of First Instance issued a letter to the Applicant stating that judgment in HCAL 257/2024 was estimated to be handed down as soon as possible or in mid-April 2024.

3.3  The Applicant has since the Previous Reasons continued to express his unwillingness to return to his home country and to refuse to complete a reentry application form as required by the Indian Consulate. As at the hearing before me, the Indian Consulate has still refrained from issuing an emergency travel document, due to the Applicant’s failure to complete the requisite application form.

3.4  Since the Previous Reasons, reviews of the Applicant’s present detention have continued. In the latest review carried out on 21 February 2024, release of the Applicant was not recommended on the broad grounds set out at §2.7 above, In particular, it was considered that (1) the length of the Applicant’s detention was attributable his own delay in commencing HCAL 257/2024, (2) the Applicant has remained uncooperative and expressed unwillingness to return to his home country, (3) there continued to be significant risks of the Applicant (re)offending and absconding and (4) the Applicant was a possible threat to the security to the community.

4.   The applicable principles

4.1  The applicable principles are set out in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99. I have in particular borne in mind the summary set out at §164 thereof.

4.2  I remind myself that the burden is on the respondent to an application for a writ of habeas corpus to justify the lawfulness of the applicant's detention.

4.3  The central question is whether the detention has become or will foreseeably become unreasonable in all the circumstances and hence unlawful.

4.4  Under section 32(4A) of the Ordinance, the detention of a person shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including (1) whether the person's removal is directly or indirectly prevented or delayed by any action or lack of action of the person, (2) whether the person poses, or is likely to pose, a threat or security risk to the community, (3) whether the person's removal is directly or indirectly prevented or delayed by any action or lack of action of the person, including the person not obtaining, or not providing assistance to obtain, any authorization from the relevant authorities of a place outside Hong Kong that is required for the person's entry to that place and (4) factors that directly or indirectly prevent or delay the person's removal that are not within the control of the Director.

4.5  The Court of Appeal has recently provided guidance in Johnson Benjamin v Director of Immigration & Anor [2023] HKCA 1368. On the issues of an applicant’s delay in pursuing legal proceedings and his refusal to cooperate in completing the reentry formalities , Au JA said:

“ [25] On the other hand, as mentioned above, the Judge rightly found that the applicant by his own conducts had not pursued with any reasonable diligence his NRC for a long period of time. By the time when he eventually seriously pursued it in December 2021 (just before he was to be released from prison), it was already 10 years since the applicant first lodged the NRC.

[26] In this respect, it is also important to note that the Judge further rightly observed and accepted at [70] and [71] of the Written Judgment that (a) the equivocation of the applicant had significantly contributed to the significant delay in the determination of his NRC, and (b) had the applicant chosen to pursue his case with some diligence, his NRC might have been resolved long before February 2022, when the immigration detention commenced.

…

[29] Once considered against these primary findings of facts and observations, in our view, it was not sensibly open to the Judge to conclude, after weighing all the relevant factors as he did, that the relevant immigration detention had become unreasonably long and thus unlawful:

(1) It is plain that the relevant relatively lengthy period of immigration detention is substantially caused and necessitated by the applicant's own unreasonable conduct and acts in significantly delaying the disposal of his NRC. In other words, had he pursued his NRC reasonably diligently, as he ought to have, he would most likely have been ready to be removed expeditiously upon his release from prison. As stated by the Judge at [31] of the Written Judgment, the Liberian Embassy would be able to issue the applicant the replacement passport in 2 weeks once all the formalities have been completed, and in fact, it was the applicant's own case that he would be able to obtain the replacement passport even quicker. In the premises, the applicant's further frustration of the replacement of his passport has therefore further compounded the delaying effect caused by his unreasonable conduct in his pursuit of the NRC.

(2) In the circumstances, the Judge's emphasis on the relatively long period of the detention in the present case as the starting and in effect the tipping point to show that the detention had become unreasonably excessive simply cannot be right.

(3) 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.

…

[37] Second and in any event, with the greatest respect, we have reservation as to whether the observations in R(Lumba) are necessarily correct. In our view, even if there is an ongoing non-refoulement claim, there is no reason in principle why it is not reasonable to expect an applicant to cooperate with the relevant authorities to obtain the necessary travel document to facilitate his removal once the non-refoulement claim is disposed of. In other words, we do not see in principle why such uncooperative behaviour on the part of an applicant should only be limited to the consideration of the risks of absconding but not also to the wider question of whether any additional period of detention resulting from such behaviour shall be considered as reasonable or not.”

5.   The Applicant’s submissions

5.1  The Applicant’s submissions made in his written materials may be summarized as follows (which summary was confirmed by the Applicant at the hearing):

(1) He has been detained for over 35 months. He referred to the case of Romeo Santiago HCMP 2592/1988 for the proposition that a period of 4 months was considered very long for a person to be kept in detention pending his removal from Hong Kong.

(2) The Secretary/Director have not been able to effect removal or deportation and it appears to him that they are using his liberty as a “trap” in order to force or persuade him to agree to be removed.

(3) By reference to Orlando Polanco v Secretary of State for the Home Department [2009] EWHC 826, he says that the risks of (re)offending and/or absconding can no longer justify his detention. This is because however great those risks are there must come a time when it can no longer be said that his detention of reasonable. Further, he urges the court to accept his assertion that he has since reflected on his past actions.

(4) His lengthy detention has had adverse effect on his mental health and his health conditions in general.

5.2  At the hearing, the Applicant produced his medical records for my reference. In addition, he explained that he was only able to commence HCAL 257/2024 due to his lack of financial means. In particular, he told me that he was unable to gain access to a sanctioned payment in the sum of HK$85,480 made in a District Court action (which he purportedly accepted), on the basis that his lawyer did not place the money in his property at the detention centre as promised. However, I note that in the Applicant’s letter provided to me at the hearing, the position appears to be that the Applicant was told by Mr Bhatti Saeed Iqbal (a lawyer at Messrs M.C.A. Lai Solicitors LLP) that the sum could be given to a “friend or anyone” nominated by the Applicant.

6.   Analysis

6.1  During the present detention, the Applicant for different periods is or has been detained pursuant to sections 32(3A), 29(1), 29(2) and 32(3) of the Ordinance. It follows therefore that there has been prima facie lawful authority to detain the Applicant.

6.2  The question which falls for determination is whether the detention has become unreasonable in all the circumstances, and hence unlawful. The starting point is the period of detention, namely 1,121 days, against which the various other factors must be weighed and balanced.

6.3  I accept that, throughout the period of detention, the intention of the Director/Secretary is to remove/deport the Applicant and that has been the only purpose of the Applicant's detention. HS1 is satisfied.

6.4  I also accept that the Director/Secretary have acted with diligence and expedition to effect the Applicant's removal. HS4 is satisfied. As matters present stand, there are both legal and practical impediments to the Applicant’s removal. As regards the former, under the Updated Removal Policy, the Applicant’s removal will only be effected after the resolution of HCAL 257/2024 should it be determined against the Applicant (a decision is expected to happen by mid-April 2024). As regards the latter, the Indian Consulate has thus far refrained from issuing an emergency travel document due to the Applicant’s lack of cooperation.

6.5  However, it seems to me plain that both the legal and practical impediments are self-induced by the Applicant himself.

6.6  In relation to the latter, it is self-evident that the practical impediment is created by the Applicant’s refusal to cooperate.

6.7  In relation to the legal impediment, as noted at Previous Reasons §42, the delay leading to TCAB’s hearing on 28 December 2022 must be down to the Applicant. Thereafter, following the TCAB’s Decision (made on 13 January 2023), the Applicant did not commence HCAL 257/2024 until 1 February 2024 (which was grossly out of time) and only after he had commenced the present application for habeas corpus. I do not accept the Applicant’s explanation that the delay can be justified by his lack of financial means. As set out at §5.2 above, the Applicant was told by his lawyer that the funds remained at his disposal. Even if due to his lack of local ties the Applicant was unable to nominate someone to receive the funds, there is no reason why he could not have asked his lawyer to commence the proceedings.

6.8  Heeding the guidance set out in Johnson Benjamin (§4.5 above), the inescapable conclusion is that the additional period of detention (at the very least until the resolution of HCAL 257/2024 estimated to be in mid-April 2024) is, in my view, reasonable, there being no other circumstances to show otherwise. Although it is not for me to speculate on the outcome of HCAL 257/2024, my observation is that the TCAB’s Decision is a detailed document and it appears that HCAL 257/2024 is not pursued with a high degree of conviction - I was told by the Applicant that he was not aware of the grounds pursued by HCAL 257/2024, as the application was drafted by a friend.

6.9  I acknowledge there is force in the Applicant’s contention that the weight attributable to the risks of (re)offending and absconding may erode as his detention lengthens (Harjang §§164(14) to (20)):

(1) The Applicant has been detained for a significant period since the Previous Reasons.

(2) Where, as set out at Previous Decision §44 (on which I form the same view), there was perhaps some risk of absconding (there being only one previous instance of absconding), I am prepared to proceed on the basis that I should not continue to place any significant weight on such risk.

(3) However, the same cannot be said about the risk of (re)offending given the extent and nature of the Applicant’s previous convictions. As set out at Previous Decision (with which I again form the same view), the Applicant is a recidivist, in particular as regards the repeated indecency offences and offences involving violence, identity a real and substantial risk to the community. Little wight should be given to the Applicant’s promise that he has turned or will turn a new leaf, bearing the mind the frequency of his previous offences (as summarized at Previous Decision §12).

6.10  I do not place significant weight on the Applicant’s reliance on his health condition allegedly caused or exacerbated by his continued detention. First, there is no suggestion that appropriate medical care pending removal is not available to him, and the medical records produced by the Applicant demonstrate that he has received treatment both within the detention centre and from external institutions. Secondly, in so far as his mental condition is linked to his detention, for the reasons set out above, the additional period of detention is largely self-induced.

6.11  For the above reasons, HS2 and HS3 are also satisfied.

7.   Conclusion

7.1  I am satisfied that the Applicant's detention, and likely foreseeable future period of detention (at least until the resolution of HCAL 257/2024 estimated to be in mid-April 2024), has been and will remain lawful.

7.2  As a result, the Applicant's application is dismissed with no order as to costs.