MD FATTAH AHMED v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 46/2024

[2024] HKCFI 736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 46 OF 2024

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J U D G M E N T

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A.  Application

1.  By an ex parte application filed on 4 January 2024, 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 Correctional Services Department.

B.  Background of Applicant

2.  The Applicant is a Bangladesh national born in 1985 who claimed to have entered Hong Kong illegally from the Mainland on 5 March 2020. He was arrested by the Police for illegal remaining in Hong Kong on 1 May 2020. He immediately raised a non-refoulement claim (“NRC”) on the same day. He was then referred to the Immigration Department (the “Department”) and admitted to Castle Peak Bay Immigration Centre.

3.  The Applicant claims that his passport had been lost.

4.  On 15 May 2020, a removal order (the “Removal Order”) was made against the Applicant and the same remains subsisting and valid. On 29 May 2020, the Applicant was released on recognizance.

5.  On 12 October 2022, the Applicant was convicted of “taking employment while being a person in respect of whom a removal order is in force” and sentenced to 16 months’ imprisonment.

6.  On 2 September 2023, the Applicant was discharged from prison and detained under section 32(3A) of the Immigration Ordinance (the “Ordinance”) until present.

7.  At the time of the hearing, the Applicant has been detained for 189 days.

C.  NRC related proceedings

8.  The Director of Immigration (the “Director”) rejected the Applicant’s NRC on 17 November 2020 by a notice of decision (the “Director’s Decision”). The Applicant’s appeal to the Torture Claims Appeal Board against the Director’s Decision was dismissed on 23 November 2021 (the “TCAB Decision”).

9.  The Applicant’s application to the Court of First Instance for leave to apply for judicial review against the TCAB Decision (the “JR Application”) was dismissed by the Form CALL-1 in HCAL 69/2022 dated 21 December 2023.

10.  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.

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

D.  Criminal Record/Record of Abscondence

12.  The Applicant’s criminal and sentencing records are as follows:

Date of Conviction	Offence	Period of Sentence
12 October 2022	Taking employment while being a person in respect of whom a removal order is in force	16 months’ imprisonment

E.  Steps towards Removal

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

14.  The Consulate General of the People’s Republic of Bangladesh (the “BGD CG”) has indicated that for this particular case of lost passport, it would take around 3 months for a travel document to be processed and issued.

15.  The Director had tried to initiate the re-entry seeking process by inviting the Applicant to fill in the necessary forms around six months prior to the Applicant’s discharge from prison. The Department first wrote to the BGD CG on 10 March 2023 (6 months prior to the present detention) seeking its assistance in the issuance of a travel document. The BGD CG replied that an interview was required for the issuance of a replacement travel document.

16.  The Applicant indicated his unwillingness to return to Bangladesh on 13 and 24 October 2023 and refused to co-operate with the necessary re-entry formalities.

17.  On 2 February 2024, the Department explored with the BGD CG on the alternative means for the issue of the replacement travel document due to the Applicant’s continual refusal to co-operate.

18.  On 11 January 2024 and 6 February 2024, the Department had contacted the BGD CG by phone seeking exemption of the requirements for re-entry application form and interview. The BGD CG maintained that the re-entry seeking application form and interview were required for the issuance of the Applicant’s travel permit.

F.  Applicable Principles

19.  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.

20.  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

21.  The Applicant has set out his grounds for application in his affirmation filed on 4 January 2024. In summary, they are as follows:

(1)  The detention was not for purposes of deportation.

(2)  He cannot be removed within a reasonable time.

(3)  The respondents did not act with reasonable diligence.

(4)  His JR Application is still ongoing.

(5)  He is remorseful for the crime he committed, which posed no threat to the community.

(6)  He had never absconded.

(7)  He can provide a surety who is a Hong Kong permanent resident.

(8)  He is suffering mentally as the detention centre is over-crowded.

(9)  The wearing of electronic tags were very uncomfortable.

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

(1)  He wishes to co-operate but he would only do so when he is released on recognizance.

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

H.  Lawful Authority for Detention?

24.  The Removal Order was issued on 15 May 2020 and remains valid. The Applicant has been detained from 2 September 2023 under section 32(3A) of the Ordinance which permits the detention of a person against whom a removal order is in force pending his deportation from Hong Kong.

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

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

I.  Whether Detention has become unlawful

27.  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”);

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

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

HS1

29.  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

30.  The starting point is the length of the detention – 189 days – against which all the other factors must be weighed and balanced.

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

(1)  Contrary to the Applicant’s submission, his JR Application had been dismissed. There is no further legal impediment to the Applicant’s removal.

(2)  There is no dispute that the Applicant has repeatedly refused to co-operate in obtaining a valid travel document to enter Bangladesh as well as refusing to attend interviews or co-operate with removal arrangements.

(3)  There is nothing to indicate that but for the Applicant’s repeated refusal to co-operate in the removal arrangements, there was any further obstacle to his repatriation, hence release from detention.

(4)  In Johnson Benjamin v Director of Immigration & Secretary for Security[1], the Court of Appeal held that:

“ 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.”

(5)  The period of detention that the Applicant has prolonged by his refusal to co-operate will thus not be counted as unreasonable when determining whether an originally lawful detention has become unlawful. I am of the view that such period in the present case would be the majority of the period of detention as the Applicant has since the commencement of the detention been acting unreasonably.

(6)  The BGD CG has indicated that for this particular case of lost passport, it would take around 3 months for a travel document to be processed and issued. The Director attempted to initiate the re-entry seeking process by inviting the Applicant to fill in the necessary forms around six months prior to the Applicant’s discharge from prison. This is clearly to minimise the time it would take for the Applicant to be detained whilst waiting for the issue of the travel document. The Applicant had chosen not to co-operate. He cannot therefore complain now that it takes 3 months for the processing of a travel document.

(7)  The Applicant has been convicted of an offence. The risk of re-offending is real, as the Applicant would need to take up employment to support himself.

(8)  Despite the availability of a surety, he is not a family member but only a friend. Given the Applicant’s clear attitude in the past that he is unwilling to be repatriated, the risk of absconding is real. With no local connection and the past history, I consider the risk of abscondence to be high. The risk of abscondence is of critical importance in assessing the lawfulness of the detention. If the Applicant absconds, it would defeat the primary purpose for which the power to detain has been conferred and for which the detention order was made.

(9)  He is not in a position to impose the condition that he would only co-operate with the obtaining of a replacement travel document if he is released on recognizance.

(10)  There is no record that the Applicant had complained about the conditions of the detention centre.

(11)  There is also no reason to believe that the Applicant would not receive appropriate medical treatment at the detention centre if required.

(12)  Overall, weighing the period of detention – around 189 days – against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

32.  I am satisfied that HS4 is satisfied as shown in the efforts undertaken by the Immigration Department as set out in paragraphs 14 – 18 hereinabove. I am thus of the view that the Director had diligently pursued the Applicant’s deportation.

33.  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

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