TAMANG BHAKTALAL v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1541/2022

[2023] HKCFI 214

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1541 OF 2022

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JUDGMENT

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A.  Introduction

1.  The Applicant is the subject of a Removal Order and a Deportation Order issued under the Immigration Ordinance Cap 115 (“Ordinance”). He has been held in immigration detention since 17 May 2021 pending his removal from Hong Kong. To the date of hearing, the period of detention has lasted 614 days, or around 1 year and 8 months.

2.  On 20 December 2022, the Applicant applied for a writ of habeas corpus on grounds identified in his supporting affirmation.

3.  I gave directions for the Respondents to file an Initial Response, and so as to bring the matter to a hearing on 20 January 2023. At the hearing, the Applicant appeared in person with the benefit of a Nepali/English interpreter. The Respondents were represented by Mr Jeffrey Fong, Senior Government Counsel.

B.  Factual Circumstances

B.1  Immigration Status

4.  The Applicant is a Nepali national born in 1995. He first entered Hong Kong as a visitor in 2014, with a 7-day limit of stay. But he did not depart as required and has been overstaying in Hong Kong ever since.

5.  As said, the Applicant is the subject of both a Removal Order and a Deportation Order, made against him on 12 August 2014 and 2 April 2020 respectively. Both orders remain extant as of today.

6.  The Removal Order was issued under section 19(1)(b) which, authorizes the Director to issue such an order against a person who does not enjoy right of abode or the right to land in Hong Kong. The Deportation Order was issued by the Permanent Secretary for Security under section 20(1)(a) which authorizes the Secretary, as the delegate of the Chief Executive, to issue such an order on the basis that an immigrant has been found guilty of an offence punishable with not less than 2 years’ imprisonment.

B.2  Criminal Record and Absconding History

7.  On 17 November 2015, the Applicant was sentenced to a total of 15 months’ imprisonment for using an identity card relating to another person and taking employment unlawfully.

8.  Thereafter, at various dates between 2018 to 2021, he was convicted of 4 counts of theft, each leading to 2 to 4 weeks’ imprisonment, with one sentence suspended for 18 months. As Mr Fong has emphasized, on each occasion that he was arrested for an offence of which he was later convicted, the Applicant was on recognizance.

9.  The Applicant jumped Police bail once after he was arrested for theft. He was re-arrested again after about one week. That occurred in 2018.

10.  He has also failed to report immigration recognizance twice. On both occasions, he resurfaced a few months later by writing to the Immigration Department (“ImmD”), claiming that he failed to report because he forgot, he was arrested by the Police or that he was sick. Those occasions occurred in 2018 and 2019.

B.3  Non-refoulement Claim and Related Proceedings

11.  The Applicant first raised a non-refoulement claim (“NRC”) on 17 July 2014, 2 days after he was arrested for being a suspected over-stayer. In the years that followed, his NRC was dealt with by the Director and then the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”). There is no need to set out all the detail of the procedural history at the administrative level. Suffice to say that his NRC was refused by the Director in May 2016, and the Applicant appealed in time to the Board, but the Board dismissed his appeal in October 2016. Further, his NRC under Article 2 of the Hong Kong Bill of Rights was refused by the Director also in October 2016, but the Applicant only filed a late intended appeal in July 2017, and that late application was rejected in August 2019. Eventually on 7 April 2020 he sought leave to apply for judicial review in HCAL 529/2020 (“JR”) against that decision of the Board, and that application for JR was itself filed late.

12.  The JR leave application had not yet been disposed of by the Court when the present detention commenced on 17 May 2021, after he completed his last term of imprisonment.

13.  Towards the end of December 2021, the Department of Justice (“DoJ”) wrote to the Court to urge for priority for the Applicant’s JR leave application. On 8 February 2022, the Court of First Instance (“CFI”) refused leave to the Applicant. There is no need to rehearse in detail DHCJ Bruno Chan’s decision, [2022] HKCFI 406. Suffice to say that the learned Deputy Judge found the leave application to be devoid of merit, and that the application was 4 months late and there was no good reason to justify the delay or the granting of an extension of time.

14.  On 7 June 2022, the Applicant issued a summons applying for an extension of time to appeal against the CFI’s decision. By then, the application was about 3 months’ late. It can also be noted that that late application was mounted only shortly after the failed attempt to repatriate the Applicant on 25 May 2022 (see below).

15.  On 7 December 2022, the CFI refused the extension of time. It was said in the decision, [2022] HKCFI 3612, that the Applicant had failed to put forward any grounds of appeal or provided any good reasons to justify the delay.

16.  Contrary to the previous understanding of the Director (though the Applicant says he informed his case welfare officer of the fact), the Applicant has launched a further application to the Court of Appeal (“CA”) by summons dated 20 December 2022 in CAMP 543/2022. That summons has not yet been determined (though, against the history of matters, it does not look to me to have any particular merit).

B.4  Detention and Reviews

17.  Prior to the present detention, the Applicant was subject to immigration detention on five occasions, authorized by various sections of the Ordinance. Three of those periods were fairly brief, each lasting about 2 weeks to 1 month. Two of them lasted 4 months and 6 months respectively.

18.  The present detention commenced after he was released from prison following his last conviction for theft.

19.  During the 1 year and 8 months’ detention period running from 17 May 2021, the Applicant’s detention has been reviewed on 5 occasions. The reviews were conducted in June 2021, August 2021, December 2021, April 2022, and June 2022. On each occasion, continued detention was recommended. The grounds for continued detention given were: (i) the Applicant’s removal is going to be possible within a reasonable time, (ii) he may constitute a threat/security risk to the community, (iii) he may abscond and/or (re)offend, (iv) he does not have close connection or fixed abode in Hong Kong, and (v) there are no other circumstances in favour of his release.

20.  As reflected in the internal minutes for those reviews of detention, the Secretary/Director consistently took note of his being a repeated offender and his record of jumping police bail and failing to report for immigration recognizance. Throughout his period of detention, he had a valid passport expiring on 12 August 2023. For the period where an obstacle was presented by the two sets of proceedings at the CFI level attempting to overturn the Board’s decision, the view taken was that there was no reason not to believe that his application would be disposed of by the CFI fairly quickly. Also taken into consideration was that a friend of the Applicant who was a Hong Kong permanent resident was willing to be the Applicant’s guarantor, but that factor was not considered enough to outweigh other factors in favour of detention.

B.5  Obstacles and steps towards removal

21.  Unlike many of the other detainees pending removal appearing before this Court, the Applicant in the present case has held a valid passport throughout the entire period of detention, and it remains valid.

22.  The obstacle towards his removal was the two applications he instituted in the CFI. The Applicant now claims that the recent application to the CA constitutes an obstacle to removal (as to which, see below).

23.  From May 2021 to February 2022, his then extant JR leave application was considered by the Director as a legal impediment preventing removal under the then removal policy.

24.  After the JR leave application was disposed of in February 2022, the Director did organize a repatriation operation scheduled for 25 May 2022. A flight ticket was purchased. However, the Applicant was uncooperative and refused to produce his vaccination record which was required for boarding. The operation was thus cancelled.

25.  Then from June 2022 to December 2022, his application to the CFI for extension of time to appeal against the CFI’s decision became an impediment. That application was disposed of on 7 December 2022.

26.  On the same day, the Government updated its removal policy, such that the Director would no longer consider NRC related court proceedings as a legal impediment for removal if a detainee’s NRC related proceedings have progressed to the stage by which the claimant’s application had been dismissed by the CFI. In other words, the recent application made by the Applicant to the Court of Appeal is not regarded as an impediment to removal.

27.  Another flight ticket has been purchased for a repatriation flight scheduled for 31 January 2022. As it now stands, therefore, there is no obstacle towards removal and repatriation is imminent.

C.  Applicable Principles

28.  In its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781, the Court of Appeal addressed the principles to be applied in a case such as the present. 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 this case.

29.  The summary is as follows:

(1)  The central question on an application for habeas corpus is whether there is, and continues to be, lawful authority for a detention.

(2)  An originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

(3)  What is a ‘reasonable time’ will therefore depend upon the circumstances of the particular case, taking into account all relevant factors.

(4)  The lawfulness of detention, or continuing detention, is subject to potential objective review by the Court. But the review is not a review as to Wednesbury unreasonableness, or on other public law grounds.

(5)  Either continuing detention is reasonable and so lawful, or it is not. Though the Court’s review involves an exercise of judgment and balance, that is not a discretionary decision.

(6)  Hence, the Court is the judge of, and the primary decision maker as to, the reasonableness of the detainee’s continued detention.

(7)  The burden of showing that detention is lawful lies upon the Secretary and Director.

(8)  The assessment will be made in line with the ‘Hardial Singh principles’, namely that:

(HS1) the Secretary/Director must intend to deport the person and can only use the power to detain for that purpose;

(HS2) the deportee may only be detained for a period that is reasonable in all the circumstances;

(HS3) 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; and

(HS4) the Secretary/Director should act with reasonable diligence and expedition to effect removal.

(9)  Any relevant factor may affect the length of time of detention that might be regarded as reasonable. Whilst in a specific case one or more factors may have especial weight, no factor is necessarily determinative.

(10)  A review of what might be regarded as a reasonable period of detention will include at least: (a) the length of the period of detention; (b) the nature of the obstacles which stand in the path of the Director preventing a deportation; (c) the diligence, speed and effectiveness of the steps taken by the Director to surmount such obstacles; (d) the conditions in which the detained person is being kept; (e) the effect of detention on him and his family; (f) the risk that if he is released from detention he will abscond (which may have the effect of defeating the deportation order); and (g) the danger that, if released, he will commit criminal offences.

(11)  It is helpful first to identify and have firmly in mind the period of detention to date, before balancing the various other factors and risks against that period. This is because the weight to be given to the other factors and risks will vary as the period of detention increases in length.

(12)  Though it might seem attractive to set guideline periods or a red line (in terms of months or years) applicable to all cases, as to the circumstances in which a lawful detention becomes unreasonable and hence unlawful, no such guidelines can be set. Indeed, any attempt to do so is unhelpful. Reference to the facts of other cases is also likely unhelpful.

(13)  Nor would it be correct to think that the longer any period of detention, the greater the scrutiny that would be applied to it. Every deprivation of liberty pending deportation requires proper scrutiny of all the facts, in accordance with the Hardial Singh principles, which are the sole guidelines.

(14)  The risks of absconding and reoffending are of critical and paramount importance in the assessment of the lawfulness of the detention.

(15)  This is because if a person absconds, it will defeat the primary purpose for which the power to detain has been conferred, and for which the detention order was made in the particular case.

(16)  However, a very careful assessment of the risk must be made in each case, as the magnitude and potential impact of that risk will vary according to the circumstances.

(17)  The risk of absconding is distinct from the risk of committing further offences, and not dependent on that further risk.

(18)  The risk of reoffending requires its own distinct assessment, by reference to both its likelihood and seriousness.

(19)  Neither risk can justify detention of any length, as that would permit indefinite detention.

(20)  The longer the detention, the greater the risk necessary to justify it.

(21)  The Court will rigorously scrutinise the Secretary/Director’s assessment of risk on both grounds, and the weight to be given to that assessment will include consideration as to how convincing the reasoning is.

(22)  When assessing (a) the probability that removal can be effected at all and (b) the proximity of the time to removal, a real sense of the timescale likely to be involved must be identified to be able to qualify it as reasonable.

(23)  There must be a sufficient prospect of removal to warrant continued detention, having regard to and balanced against the weight of all other circumstances of the case.

(24)  As the period of detention gets longer, the greater the degree of certainty and proximity of removal would be expected to be required in order to justify continued detention.

(25)  On any appeal from a first instance decision of the Court, the appellate court will not interfere with the judge’s decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts. The leeway given to the first instance judge is not as a result of the view that he has made a discretionary decision, but rather as a reflection that the balancing exercise can be difficult.

30.  I have applied those principles as applicable to the particular circumstances of this case.

D.  Applicant’s Submissions

31.  Attached to his supporting affirmation for this application are 5 pages of handwritten notes on which the Applicant set out the grounds he would rely on. In gist, he said his detention which started as lawful has become unlawful under the Hardial Singh principles for the following reasons:

(1)  He cannot be removed until all his NRC related proceedings are “finalised”. He had the right to further appeal and a right to file a subsequent claim which could also lead to further JR proceedings. His NRC related proceedings could not be settled within a short time.

(2)  He does not agree with the Director/Secretary’s assessment that he would present a security risk to the society. The crimes he committed were not of a violent nature or would amount to harm to the society. He was remorseful of what he did.

(3)  He should not be detained for the crimes for which he had already served his sentence.

(4)  He could provide a guarantor.

(5)  As to absconding, he had learned his lesson and would not put himself into detention again by failing to sign his recognizance. He had never escaped from custody.

32.  At the oral hearing, the Applicant made full and articulate oral submissions, which can perhaps be summarised in the following points:

(1)  He has been detained for a lengthy period of time, around 20 months, supposedly under the same section of the Ordinance, and yet each review of detention has essentially relied on unchanging factors.

(2)  He has not withdrawn his NRC, and he has identified that he wishes to pursue it, if necessary beyond the CA to the Court of Final Appeal.

(3)  Indeed, he has applied by himself to the CA in CAMP 543/2022, and he feels it unfair that there is a claimed update in the removal policy since 7 December 2022.

(4)  If released, he would seek Legal Aid for the pursuit of his appeal. Now he is better informed, he would wish to have those facilities.

(5)  If released, he would also wish to focus on his claim, and on how to get evidence to help his claim. He wishes to have that opportunity now, though (he says) he was not given it beforehand. He has never had a proper opportunity to focus on his case, as he has almost always been detained whilst his case was ongoing.

(6)  It is not possible for the Director to foresee or decide whether his further application now made to the CA does or does not have any merit, and when it might be determined, yet he is still detained.

(7)  His treatment is unfairly different from other inmates (whose names and case numbers he provided) who were released by the Court following argument on their applications for writ of habeas corpus.

(8)  It is also unfair that two other detainees (whose names he provided) who recently sought release by way of application for habeas corpus have been released by the Director, whilst he (the Applicant) remains under detention.

(9)  His previous crimes were minor or “petty” – not even dealt with in the District Court. The offences did not involve violence, and did not harm society. He is remorseful for his previous mistakes, and if released would keep in mind the rules and not re-offend.

(10)  The total prison time served for his previous offences was around 14 months, yet he has now been detained by the Director for a longer period than that, with no end time reasonably foreseeable.

(11)  He has served the sentences applicable for his crimes, yet he has suffered lengthy detention since.

(12)  As a result, he feels that the Director has detained him without reason and whilst he still has an ongoing NRC related proceedings, which is an abuse of power.

(13)  Whilst he did previously fail to report recognizance, it happened in explicable circumstances.

(14)  Overall, by reference to other cases, his scale of offence was at the lower end compared to them, and he should be released as a matter of fairness.

(15)  To remove him on the stated date of 31 January 2023 would also be unfair.

33.  I will bear all these points in mind in my overall assessment below and make references to them as appropriate. But it is worth noting that these proceedings do not raise the question of whether the Applicant should or should not be removed from Hong Kong. The relevant question is whether he can continue to be lawfully detained pending removal from Hong Kong, when there is no challenge to either the Removal Order or the Deportation Order (and any time for challenge has long ago expired).

E.  Whether Detention Has Become Unlawful

34.  There was and remains clear prima facie lawful authority for the detention of the Applicant. The question then arises whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

35.  The starting point is the Applicant has already been detained for the period of 614 days, or about 1 year and 8 months. This period is undoubtedly a very lengthy period. It is against this lengthy period that the other factors are to be weighed and balanced.

36.  I accept that the Secretary/Director intend to deport the Applicant and have been only using the power to detain for that purpose. I do not think what has turned out to be the length of the detention suggests that the Secretary/director had any other intention than to deport the Applicant. HS1 is satisfied.

37.  I have no difficulty in accepting that the Director has always acted with reasonable diligence and expedition to effect removal. As indicated by the chronology, once the Applicant’s JR leave application was disposed of in February 2022, a repatriation scheduled for May 2022 was put in place. The Applicant would have been released from detention, albeit in Nepal, had he cooperated. Indeed, I note that it was only after that failed repatriation operation that the Applicant sought to renew his legal claims so as to cause an impediment to removal.

38.  Again, another repatriation operation has already been scheduled for 31 January 2023, soon after all the impediments to removal were removed in December 2022. HS4 is satisfied.

39.  I acknowledge that 1 year and 8 months is a very substantial period. But, at each point of the relevant period, I agree with the Director that it was not unreasonable to expect that the Applicant’s two NRC related applications before the CFI, which apparently lacked merit, would be disposed of by the CFI reasonably quickly. It would also be wrong to suggest that the Director/Secretary should somehow work on the assumption that the Applicant would pursue further proceedings, all that they might have any merit. Each review of detention turns on the particular factors in play at the time.

40.  Each review of detention, and indeed each habeas corpus application, also turn on the particular factors relevant to the person under review or making the application. The relevant factors and the weight and balancing exercise as regards different persons in different circumstances make it unlikely that any helpful comparison can be made between cases. Therefore, I do not think any great weight can be given to the fact that the Applicant claims to have been treated differently from other detainees or applicants.

41.  I also accept Mr Fong’s submissions that the lengthy detention period was to some extent a consequence of self-imposed obstacles, created by the Applicant himself. The prominent example would be his refusal to produce his vaccination records which caused the abortion of the first repatriation attempt. Had he cooperated, he would have been released from detention in May 2022.

42.  I would also remark that the time for the Applicant to have obtained evidence and other materials in support of his NRC was long ago, and did not just arise in the context of his renewed application to the CA. His original NRC was made in 2014, and it was ongoing for a considerable period of time when he was not detained or in prison. Indeed, it is also to be remembered that applications for leave to apply for judicial review, and all subsequent appellate steps, are not primarily concerned with the merits of the NRC itself – but with whether there is an arguable basis that there were public law failures in the decision-making process adopted by the Board (which, in this case, gave its decisions in 2016 and 2017, and where the only Court challenge was made following the latter). Therefore, I do not think that the suggested practical difficulties arising from being detained are weighty matters in the context of the current application. In the particular circumstances, I see no real prejudice to the Applicant if he is removed before his latest application to the CA is determined.

43.  I also agree that the Director is entitled to place some weight on his criminal record and absconding history. There is some risk of reoffending, though the nature of the previous offences may suggest the impact of that would not be very great. But his refusal to cooperate in the repatriation attempt in May 2022 casts doubt on whether he would turn up for the upcoming repatriation if he is to be released on recognizance. Absconding after release on recognizance would frustrate the very purpose for which the powers to detain were conferred.

44.  Assessing all the factors against the lengthy detention period of 1 years and 8 months, and having taken into account that the repatriation has been scheduled for 31 January 2023 and the Applicant would be released from detention upon repatriation rather soon, I am satisfied that the detention has remained and will remain for a period which is lawful. HS2 and HS3 are satisfied.

F.  Result

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