SUNDAY PETER ATYH alias SHABU YABRE v. DIRECTOR OF IMMIGRATION

HCAL 894/2020

[2020] HKCFI 901

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 894 OF 2020

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D E C I S I O N

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INTRODUCTION

1.  This is an application by the Applicant seeking an order that a writ of habeas corpus ad subjiciendum be issued in respect of his current detention under Section 32(3) of the Immigration Ordinance, Cap 115 (“the Ordinance”).  Unless otherwise indicated, references hereinafter to “Section” or “s” shall be to the Ordinance.

BACKGROUND FACTS

2.  The Applicant is a dual national of Guinea-Bissau and Nigeria.  On 7 September 2009, he arrived at Hong Kong International Airport and presented for arrival clearance on the strength of his Guinea-Bissau passport.  He was permitted to remain as a visitor until 21 September 2009.  He was intercepted at Customs Clearance, and suspected of internal concealment.  He was then sent to Queen Elizabeth Hospital.  X-ray examination confirmed the presence of foreign objects in his abdomen.  He subsequently discharged a total of 66 pellets of suspected dangerous drugs, which were later found to consist of 0.99 kg of a mixture containing 0.59 kg of heroin hydrochloride and 0.09 kg of monoacetylmorphine hydrochloride.

3.  On 18 March 2010, the Applicant was convicted of the offence of trafficking in dangerous drugs on his own guilty plea, and sentenced to 14 years’ imprisonment.

4.  On 20 December 2018, while serving his sentence in prison, the Applicant raised a non-refoulement claim.

5.  On 11 January 2019, the Applicant completed his sentence and was discharged from prison.  He was transferred to the Immigration Department for detention at Castle Peak Bay Immigration Centre (“CIC”) under s 32(2A)(a) pending a decision as to whether or not a removal order should be made against him.

6.  On 16 January 2019, the detention authority under s 37ZK was invoked against the Applicant pending the final determination of his non-refoulement claim.

7.  On 11 March 2019, the Applicant’s non-refoulement claim was rejected by the Director.  On 21 March 2019, he appealed/petitioned against the decision of the Director to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”).

8.  On 6 June 2019, the TCAB heard the Applicant’s appeal/petition.  On 14 June 2019, the TCAB dismissed the Applicant’s appeal/petition.  In the TCAB’s decision, the Adjudicator found that most, if not all, of the core assertions raised by the Applicant in support of his non-refoulement claim were fabricated and wholly unreliable.  In particular, his claimed profile as a “frightened and failed drug mule” was considered to have been exaggerated to a significant degree.  The Adjudicator also found that the Applicant was not a credible or reliable witness.  The Adjudicator rejected his claim based on persecution risk, BOR 2 risk, BOR 3 risk and torture risk.

9.  On 14 June 2019, the detention of the Applicant under s 37ZK ceased, and he was henceforth detained under s 32(2A)(a) and (b) from 14 June 2019 to 5 July 2019 pending a decision as to whether or not a removal order should be made against him.

10.  On 5 July 2019, the Principal Assistant Secretary for Security invoked the detention power under s 29 to detain the Applicant pending a decision as to whether or not a deportation order should be made against him.

11.  On 22 July 2019, the Applicant, acting in person, filed a Form 86 seeking leave to apply for judicial review of the TCAB’s decision (HCAL 2092/2019).  In respect of the grounds on which relief was sought, the Applicant merely stated that he was not satisfied with the decision of the TCAB which he considered to be clearly unfair and unsatisfactory. He also stated that his life would be in grave danger if he were to return to his home country.  The application was supported by a 1-paragraph affirmation made on 22 July 2019 repeating what he stated in the Form 86.  The leave application is currently pending determination by the High Court.

12.  On 1 August 2019, a deportation order was made against the Applicant by the Permanent Secretary for Security by reason of his aforesaid conviction.  On the same date, the detention power under s 32(3) was invoked against the Applicant.  This detention of the Applicant has continued up to the present moment.

13.  There have been 3 reviews of detention in respect of the Applicant’s detention under s 32(3):

	Minute	Date of Review Endorsed	Date of Service of Notice of Review of Detention
1st	M19	18.9.2019	19.9.2019
2nd	M21	3.12.2019	5.12.2019
3rd	M22	29.4.2019	4.5.2020

14.  It was decided on each occasion of review that the Applicant’s detention should continue on the grounds that (i) his removal was going to be possible within a reasonable time, (ii) he might abscond and/or reoffend, (iii) he did not have close connection or fixed abode in Hong Kong, and (iv) there were no other circumstances in favour of his release.

15.  On 11 May 2020, the Applicant made the present application for a writ of habeas corpus.  It was supported by his affirmation in which he stated that he had been unlawfully detained in CIC since 11 January 2019 and therefore he was seeking habeas corpus against his detention.  A number of documents were attached to his affirmation, including a document titled “Grounds against my Unlawful Detention”.  In that document, in addition to complaining about the length of his detention and the delay in the determination of his application in HCAL 2092/2019, the Applicant said that his life would be in danger in the hands of the Nigerian Government and gangsters in Nigeria, and that he could be prosecuted again in Nigeria for the same offence for which he was convicted in Hong Kong.

16.  The Applicant did not add anything of substance in his oral submissions in support of the present application at the hearing on 19 May 2020.

DISCUSSION

(a)     The Applicant’s detention is prima facie lawful

17.  The legal principles governing an application for a writ of habeas corpus are well settled.  The central question is whether there is lawful authority for a detention: see Fidelis Ahuwaraezeama Emen v Superintendent of Victoria Prison [1998] 2 HKLRD 448, at 453C-D per Stock J, as he then was:

“Now the purpose of an application of habeas corpus is to determine whether there is lawful authority for a detention. It is not to determine the reasonableness of any decision or whether there has been some failure to observe the rules of natural justice. Those are matters properly within the realm of judicial review.”

18.  The Applicant is currently detained under s 32(3) of the Ordinance, which states as follows -

“A person in respect of whom a removal order under section 19(1)(a) or a deportation order is in force may be detained under the authority of the Secretary for Security pending his removal from Hong Kong under section 25.”

19.  In view of the fact that -

(1)  a deportation order in respect of the Applicant is in force; and

(2)  the Applicant is being detained pending his removal from Hong Kong under s 25.

the Applicant’s detention is, prima facie, lawful.

(b)     The Applicant’s detention is Hardial Singh compliant

20.  The relevant principles were set out in this court’s recent decision in Simona Mundia v Director of Immigration [2020] HKCFI 741, and will not be repeated here.

21.  In summary, the determination of whether a person has been detained for a period that is reasonable in all the circumstances is a fact sensitive exercise.  The court has to consider, amongst other matters, the length of the period of detention; whether, and if so when, there is a realistic prospect that deportation will take place; the nature of the obstacles which stand in the path of a deportation; the diligence, speed and effectiveness of the steps taken by the Director to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences.

22.  When determining whether a period of detention has become unreasonable, the merits of the judicial process pursued by the detainee which impedes his removal is a relevant consideration.  Also, the risks of absconding and reoffending are of paramount importance in the court’s assessment of whether a period of detention has become unreasonable in all the circumstances.

23.  In the present case, there is nothing in the materials before the court to show that the Director is using the power of detention for any purposes other than for the removal of the Applicant.  There is also nothing to suggest that the Director has failed to act with reasonable diligence or expedition to effect the Applicant’s removal.  The only obstacle to the Applicant’s removal is his pending application for leave to apply for judicial review of the TCAB’s decision.  The Director is intent upon removing the Applicant at the earliest moment, and is of the view that the Applicant can be removed within a reasonable period of time and that it will not be impossible to do so.

24.  The court accepts that the Applicant has been detained for a substantial period of time.  The current detention under s 32(3) pending his removal commenced on 1 August 2019 (more than 9 months ago). The period of detention would be longer if one takes into account his previous detention during the following periods:

(1)  from 11 January 2019 to 16 January 2019 under s 32(2A) pending a decision as to whether or not a removal order should be made;

(2)  from 16 January 2019 to 14 June 2019 under s 37ZK pending the determination of his non-refoulement claim;

(3)  from 14 June 2019 to 5 July 2019 under s 32(2A) pending a decision as to whether or not a removal order should be made; and

(4)  from 5 July 2019 to 1 August 2019 pending a decision as to whether or not a deportation order should be made.

25.  The present application is not the appropriate occasion to examine in detail the merits of the Applicant’s application for leave to apply for judicial review of the TCAB’s decision.  However, to the extent that the merits of the application are relevant to a consideration of whether the period of the Applicant’s detention has become unreasonable, on my provisional assessment, the application appears to be a weak one, and does not have a good prospect of success.  The Applicant’s mere assertion that the TCAB’s decision is unfair or unsatisfactory is plainly not a sufficient ground of judicial review.  In relation to the Applicant’s claim that he could be prosecuted again in Nigeria for the same offence for which he was convicted in Hong Kong, such claim was apparently not raised before the TCAB, and has not been raised in the Form 86 in HCAL 2092/2019.  In any event, it is clear that this “double jeopardy” argument is not a ground against the deportation of the Applicant (see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743, at §§162-165).

26.  It is clear that the Applicant would have been removed much earlier but for his appeal/petition to the TCAB against the Director’s decision rejecting his non-refoulement claim and his application for leave to apply for judicial review of the TCAB’s decision in HCAL 2092/2019. Whilst the Applicant is entitled to exhaust all administrative, statutory and/or judicial remedies against the Director’s rejection of his non-refoulement claim, I consider that he must bear some responsibility for his detention since 11 January 2019.

27.  In the present case, the Director is of the view that there are risks of absconding (in view of the fact that the Applicant has no family or local connection or fixed abode in Hong Kong) and reoffending (bearing in mind the serious nature of the offence for which the Applicant was convicted and sentenced to 14 years’ imprisonment).  At the hearing on 19 May 2020, the Applicant said that he had friends in Hong Kong who could act as his guarantor should he be granted release on recognizance.  However, it appears that his friends are themselves non-refoulement claimants/asylum seekers who require support from ISS.  I have also been informed by Mr Li that the Director does not accept non-refoulement claimants/asylum seekers as guarantors for the purpose of release on recognizance.

28.  As this court stated in Harjang Singh v Secretary for Security [2019] HKCFI 1486, at §29, the Secretary/Director are much better placed than the court to consider matters such as the risks of absconding or reoffending, and whether a detainee, if released, may pose a threat or security risk to the community, which are fact-sensitive issues and involve a broad range of considerations on which the court has little knowledge or expertise.  Without in any way shirking its responsibility, the court is entitled to place weight on the Secretary/Director’s assessment on these matters.  In the present case, the Director has consistently come to the view that the Applicant, if released, may abscond and/or reoffend.

29.  It is regrettable that the Applicant’s application in HCAL 2092/2019 has not yet been heard or dealt with by the High Court.  As is well known, there has been a huge increase in the number of applications for judicial review relating to non-refoulement claims in the past few years and it unavoidably takes time for them to be dealt with.  According to the records kept by the Immigration Department, as at the end of October 2019, there were about 6,400 unsuccessful non-refoulement claimants who had lodged applications for leave to apply for judicial review.  The situation is not helped by the current COVID-19 pandemic which has led to the general adjournment of court proceedings in the past 3 months or so.  Nevertheless, court proceedings have now been resumed generally.  Since the applications are generally dealt with by the Judiciary according to the dates of their lodging, it is reasonable to expect that the Applicant’s application can be heard soon.

30.  In all, I am of the view that the Applicant has not been detained for a period that is unreasonable in all the circumstances, and his current detention is in compliance with the Hardial Singh principles.

DISPOSITION

31.  The application for the issue of a writ of habeas corpus is dismissed.  There shall be no order as to costs, which is not sought by Mr Li on behalf of the Respondent.