SANDHU SHANI v. DIRECTOR OF IMMIGRATION

HCAL 938/2022

[2022] HKCFI 3064

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 938 OF 2022

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D E C I S I O N

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A.  Introduction

1.  The Applicant is currently held in immigration detention, pending his removal from Hong Kong pursuant to a Removal Order made on 12 September 2018. He is currently held pursuant to section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”). The present period of detention commenced on 20 April 2022, and to date has lasted 171 days, or about 5½ months.

2.  On 14 September 2022, the Applicant applied for writ of habeas corpus, apparently on the ground that his detention is or has become unlawful.

3.  I gave directions for the matter to come to today’s hearing. Those directions included for the Respondent (“Director”) to provide an initial response to the application, and for the Applicant to have leave to file a reply to that initial response. The initial response was filed, but the Applicant has not filed any reply.

4.  At the hearing, the Applicant has appeared in person (with the benefit of a Punjabi interpreter).

5.  The Director has been represented by Mr Andrew Tong, Senior Government Counsel (Acting), who also signed the initial response/skeleton argument, on which he placed reliance at the hearing.

6.  This is my Decision.

B.  Background Facts

B.1  Immigration Status

7.  The Applicant is an Indian national. He is an illegal immigrant in Hong Kong and, as stated, he is now subject to a Removal Order issued on 12 September 2018. The Removal Order was issued under section 19(1)(b) of the Ordinance, and it has remained in force throughout.

8.  The power to detain pending removal under such a removal order is to be found in section 32(3A) of the Ordinance, which provides:

A person in respect of whom a removal order under section 19(1)(b) is in force may be detained under the authority of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration pending his removal from Hong Kong under section 25.

B.2  Previous entry & removal; NRC & JR

9.  The current Removal Order is not the first removal order issued against the Applicant. It is the second one. The first one was issued in 2015 when the Applicant illegally entered Hong Kong for the first time.

10.  The first entry was made on 23 September 2015. The entry was without authorization and the Applicant was refused permission to land. On 20 September 2015, he raised a non-refoulment claim (“NRC”) which was rejected by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) on 30 June 2017.

11.  The first removal order was issued on 11 December 2015. On 10 August 2017, after his NRC was rejected by the Board, he was repatriated to India.

12.  However, on 21 August 2018, he was sighted in Hong Kong again and was arrested by the Police as a suspected illegal immigrant. The Police then referred him to the Immigration Department (“ImmD”) for further action. On 12 September 2018, the current Removal Order was issued against him.

13.  The Applicant attempted to file an NRC again. His attempt was treated as a request to file a subsequent claim (“SC’). His request was rejected by the Director on 17 September 2018.

14.  On 24 September 2018, the Applicant filed a Form 86 for leave to apply for judicial review. But instead of challenging the then latest decision by the Director rejecting his request to file a SC, he chose to challenge the earlier decisions made by the Director and the Board in 2017, made before his prior repatriation to India. The Applicant lost all the way up from the Court of First Instance (“CFI”) to the Court of Final Appeal (“CFA”). On 11 March 2022, his application for leave to apply to the CFA was rejected by the Appeal Committee of the CFA.

15.  On 29 July 2022, the Applicant filed a Form 86 again, this time finally targeting the Director’s more recent decision refusing his request to file a SC (“2^nd Leave Application”).

16.  On 9 September 2022, the 2^nd Leave Applicant was refused, and at the same time a Restrictive Proceedings Order (“RPO”) was made against the Applicant, to prohibit him from commencing any fresh proceedings relating to NRC unless leave is first granted by the CFI for him to do so.

17.  Therefore, his attempt to ‘resurrect’ his NRC has been unsuccessful. From 9 September 2022 onwards, he has had no extant NRC or NRC related legal proceedings.

18.  It is to be noted that, though the Applicant might have misunderstood, his current habeas corpus application is not concerned directly with whether or not he should be removed from Hong Kong and repatriated to India. Nor is it a means to seek to raise again the NRC, and thereby avoid the consequences of the RPO.

B.3  Periods of Detention and Reviews

19.  Apparently, the present detention is not the first time the Applicant has been subject to immigration detention but I have not been informed about any prior period of detention.

20.  The present detention arose as follows. After the CFA refused the Applicant leave to appeal on 11 March 2022, the Director revoked the Applicant’s recognizance on 20 April 2022 (when he went to sign), marking the beginning of the present detention. There followed a series of letters issued by various law firms on the Applicant’s behalf requesting for the “re-opening” of his NRC/SC or for him to be released on recognizance. As the chronology indicates, the 2^nd Leave Application was instituted and rejected during the present detention.

21.  ImmD reviewed the Applicant’s detention on 13 June 2022, 7 September 2022, and 29 September 2022. On each occasion, ImmD recommended continued detention. The grounds for detention on the last review were:

(1)  the Applicant’s removal is going to be possible within a reasonable time;

(2)  his removal is imminent or immediate repatriation is being arranged;

(3)  he has no outstanding claim impeding removal;

(4)  he has no outstanding legal proceedings other than the current habeas corpus application;

(5)  he is a returning removee;

(6)  there are no other circumstances favouring release; and

(7)  the fact that he has local connection – his sister and a friend both of which are Hong Kong permanent residents – does not outweigh other factors.

22.  The Applicant has been provided with the Notice of Review of Detention on 19 September 2022, and its contents were explained to him with the assistance of an interpreter. The same happened for the last review, on 30 September 2022.

B.4  Steps towards Removal

23.  The Applicant did not have valid travel documents necessary for his repatriation. On 16 August 2021, ImmD wrote by letter to the Consult General of the Republic of India (“Indian Consulate”) requesting for issuance of a replacement travel document. On 29 April 2022, the Applicant had an interview with the Indian Consulate but he expressed unwillingness to return. The Applicant also consistently expressed unwillingness to return in his numerous interviews with ImmD.

24.  But the Indian Consulate did issue an Emergency Certificate – presumably the functional equivalent of a passport – on 12 August 2022. The Emergency Certificate has an expiry date of 11 February 2023. ImmD then moved to arrange for the Applicant’s return flight to India. On 27 September 2022, ImmD managed to secure a seat for the Applicant on a flight to India. The flight is scheduled on 12 October 2022, 5 days from today’s hearing.

C.  Grounds of Application

25.  The Applicant’s grounds are set out in the first page of the documents exhibited to his supporting affirmation, which states:

1.  I Sandhu Shani [detainee no. 15Q9-18] c/o Castle Peak bay Immigration centre, 84, Castle Peak bay Road, Tuen mun, New Territories, Hong Kong. Solemnly and sincerely affirms as follows:

(1)  The present detention is unlawful.

(2)  I have been detained since 20 April 2022 til now and it is almost 5 months. I am now detained under s 32 i.e. pending for removal.

(3)  I wish to stay in Hong Kong until all the claims are completed.

(4)  My USM Claim is at 2^nd JR stage.

(5)  I should not leave Hong Kong until it is completed.

(6)  I am presently detained pending for non-refoulement claim and not pending removal. It is possible to remove me within a short reasonable period. Therefore, the present detention is unlawful.

(7)  I shall not run away.

(8)  I cannot go back to my home-country because I have real risk of my safety. My life is in danger in my country. I beg to stay please issue of a writ of Habeas Corpus for my release from detention.

(9)  I can only speak Punjabi and please arrange Punjabi interpreter for my hearing.

26.  As shown in the chronology above, indeed by the time of the affirmation, the so-called “2^nd JR” was no longer extant. The 2^nd Leave Application was rejected on 9 September 2022, and the RPO was made.

27.  The rest of the documents exhibited to the affirmation explain why he did not want to return to India. These appear to be relevant to his NCR rather than the lawfulness of his current detention.

28.  At the hearing, the Applicant made oral submissions, mainly on his concerns about being returned to India. He stated that this court was his “last hope”. But, as stated, those are matters are not centrally relevant to the current application, which is focused on whether the detention pending removal is continues to be lawful. Perhaps his only point relevant to the balancing exercise required on this application is that he says he has a guarantor, and was able to produce a letter to the court from the proposed guarantor.

D.  Applicable Principles

29.  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.

30.  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.

E.  Merits of Application

31.  The Removal Order issued against the Applicant is extant. The detention of the Applicant under section 32(3A) of the Ordinance clearly provides prima facie lawful authority to detain the Applicant pending removal. The question raised by this application is whether the detention has become unlawful, as a result of the period of detention becoming unreasonable in all the circumstances – when looking at the Hardial Singh principles outlined above.

32.  Mr Tong submits that the detention of the Applicant has been reasonable at each stage, and throughout the entire 171 days. He submits that the period is of itself not unreasonable so as to become unlawful so far. Having carefully considered the circumstances, I agree.

33.  First, the Director does intend to deport the Applicant and is only using the power to detain for that purpose. Indeed, the Director intends to remove the Applicant as soon as possible, where there is no legal impediment against removal and emergency travel documents have been obtained. A repatriation flight has been arranged, to effect removal next week. HS1 is satisfied.

34.  Secondly, the Director has acted with reasonable diligence and expedition to effect removal, including by the obtaining of the emergency travel documents, and by arranging the repatriation flight. HS4 is satisfied.

35.  Thirdly, there has been no extant NCR at any point in the present period of detention. The Applicant’s first round of NCR was finally disposed of by the CFA on 11 March 2022. His attempt to file a SC was refused by the Director on 17 September 2018 and the time for challenging such decision by judicial review had long expired before the commencement of the present period of detention.

36.  Whilst the Applicant did attempt to overturn the Director’s refusal to allow him to file the SC by the 2^nd Leave Application, it was made years out of time. The Director then urged the Court to accord priority to the 2^nd Leave Application and the Court did swiftly dismiss the application on 9 September 2022 – at the same time as the RPO was made. In the circumstances and where ImmD had made efforts to secure the necessary emergency travel documents and flight, the Director was correctly of the view that the Applicant could likely be removed within a reasonable period of time. HS3 is satisfied.

37.  Balancing matters overall – and keeping firmly in mind that the period of detention to date is 171 days and a repatriation flight is scheduled in 5 days’ time – I have no difficulty in concluding that the Applicant has been detained, and will likely be further detained, only for a period that is reasonable in all the circumstances. Albeit upon his repatriation, the period of detention will cease on next Wednesday. HS2 is satisfied.

F.  Result

38.  The Applicant continues to be lawfully detained. The Applicant’s application for writ of habeas corpus is, therefore, dismissed.

39.  I make no order as to costs.