ABDI NEGARA v. DIRECTOR OF IMMIGRATION

HCAL 1623/2023

[2023] HKCFI 2704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1623 OF 2023

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DECISION

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1.  Introduction

1.1  The applicant is subject to a Removal Order made on 26 June 2015.  He has been held in immigration detention since 4 January 2023 pursuant to section 32(3A) of the Immigration Ordinance (“Ordinance”).  As at the date of the hearing before me on 18 October 2023, the applicant has been detained for a period of 288 days.

1.2  On 12 September 2023, the application applied for a writ of habeas corpus. Directions were given for the respondent to file an initial response.  At the hearing, the applicant appeared in person, with the benefit of an interpreter, and the Director was represented by Mr Felix Lee, Government Counsel, who also signed the initial response.

1.3  This is my decision on the applicant’s application.

2.  Background

2.1  The applicant is an Indonesian male born in 1985.  On 31 March 2015, the applicant arrived in Hong Kong and was permitted to stay initially until 30 April 2015 but his permission to stay was subsequently extended until 2 May 2015.  He has since overstayed in Hong Kong. 

2.2  On 21 May 2015, the applicant was arrested by the police for being an overstayer and referred to the Immigration Department for investigation.

2.3  As stated above, on 26 June 2015, a Removal Order was made against him. The applicant declared on 2 July 2015 that he did not intend to appeal against the Removal Order. 

2.4  On 8 July 2015, the applicant was released on recognizance.

3.  The applicant’s non-refoulement claim (“NRC”) and related proceedings

3.1  On 29 May 2015, the applicant raised a non-refoulement claim, which was refused by the Director on 10 May 2018.  His appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”) was refused on 8 October 2018.  TCAB essentially rejected his claim on its adverse finding on the applicant’s credibility, in particular on his case that he had joined and then renounced his membership in ISIS and, as a result, would be harmed or killed by ISIS.

3.2  On 10 October 2018, the applicant applied for leave to apply for judicial review against the decision of TCAB (HCAL 2174/2018).  DHCJ Bruno Chan dismissed the leave application on 14 September 2020^[1], as the learned Judge concluded that (1) there was no error of law or procedural unfairness and (2) there was no failure on the part of the Director and TCAB to apply the requisite standards of fairness in their consideration and assessment of the applicant’s NRC (“14/9/20 Decision”).

3.3  The applicant’s subsequent appeal against the 14/9/20 Decision to the Court of Appeal was unsuccessful^[2] and the Court of Appeal thereafter refused leave to appeal to the Court of Final Appeal^[3].

3.4  The applicant subsequently applied to the Appeal Committee for leave to appeal to the Court of Final Appeal in FAMV 27/2022.  On 29 July 2022, in accordance with the Rule 7 procedure, the Appeal Committee dismissed the application.

3.5  On 30 August 2022, the applicant requested the Immigration Department to allow him to make a subsequent claim under section 37ZO of the Ordinance.  On 8 December 2022, the Director refused the applicant’s request in that there has been no significant change of circumstances since the applicant’s previous claim was determined, or those changes, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

3.6  As stated earlier, the applicant has since 4 January 2023 been detained.  On 13 July 2023, the applicant filed an out of time application for leave to apply for judicial review against the Director’s refusal to allow him to make a subsequent claim (HCAL 1185/2023).  On 13 September 2023, DHCJ Bruno Chan dismissed the application and made a Restricted Proceedings Order against the applicant^[4].

4.  Current detention and its reviews

4.1  As recorded in the Notice of Detention dated 4 January 2023, the purpose of detention was stated to be for pending removal/deportation from Hong Kong and the ground given for the detention was that the applicant’s removal was going to be possible within a reasonable time.  In particular, reference was made to the Updated Removal Policy which came into effect on 7 December 2022.

4.2  Throughout the detention period, the applicant^[5] persistently expressed unwillingness to return to Indonesia and repeatedly refused to attend an interview with the Consulate General of Indonesia or to cooperate in complying with the reentry formalities.  The applicant’s position is expressly recorded in writing in his own representations made to the Director on 7 July and 15 September 2023.

4.3  Three reviews of the applicant’s detention have been carried out, respectively on 31 March, 30 June and 4 October 2023.  In each of the reviews, in recommending continued detention, reference was made to (1) the fact that there was no longer any legal impediment to the applicant’s removal and (2) the applicant’s uncooperative attitude in complying with the reentry formalities. In the last review, reference was additionally made to the risk of the applicant absconding, by reference to his uncooperative attitude and lack of verifiable local ties.

4.4  In the ordinary course, subject to the applicant’s providing cooperation, an Emergency Travel Document would be issued in about two weeks. Despite the applicant’s stance, the Director has also sent an invitation to the Consulate General to interview the applicant at CIC on 25 October 2023 for the purpose of the reentry application.  At the hearing, I was informed by Mr Lee that it is now confirmed that the Consulate General will visit CIC on 26 October 2023.

5.  The applicable principles

5.1  The applicable principles are set out in Harjang Singh v Secretary for Security [2022] HKCA 781.  I have in particular borne in mind the summary set out at §164 thereof.

5.2  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. 

5.3  Further, as has been stated and repeated in many previous decisions, an application for a writ of habeas corpus is not an opportunity for the applicant to continue to assert the concerns underpinning his NRC and the court in his habeas corpus application will not look at the merits of any such claim.  The central question is whether the detention has become or will foreseeably become unreasonable in all the circumstances and hence unlawful.

6.  The applicant’s submissions

6.1  The grounds set out in the applicant’s written materials may be summarized as follows.

(1)  He fears for his own safety, if repatriated, as he is a target of ISIS for renouncing his “membership”.

(2)  He has been law-abiding and does not have any criminal records or any failures in complying with bail conditions.  He was surprised that he was detained on and since 4 January 2023.

(3)  His detention has caused him to be separated from his “heavily pregnant” wife, who is herself an overstayer.

6.2  At the hearing, he supplemented or emphasized the follow matters.

(1)  He wishes to be released from detention to look for his wife and his child.  Once he is able to do so, he promised to bring them to CIC and surrender themselves.

(2)  His plan is, even if the whole family returns to Indonesia, to relocate themselves to another country as it would not be safe to remain in Indonesia.

7.  Analysis

7.1  Throughout the applicant’s detention period, there has been prima facie lawful authority to detain the applicant pursuant to section 32(3A) of the Ordinance.

7.2  The question which falls for determination is therefore whether the detention has become unreasonable in all the circumstances, and hence unlawful.  The starting point is the period of detention, namely 288 days, against which the various other factors must be weighed and balanced.

7.3  I acknowledge that 288 days is objectively a very lengthy period.

7.4  I can also appreciate the applicant’s surprise at being suddenly taken into detention.  However, the foregoing does not give rise to any direct implication as to the lawfulness of the detention.  Persons such as the applicant are released on recognizance, but are always subject to potential ceasing of recognizance, to be detained where appropriate under a power granted by the Ordinance.

7.5  I accept that, throughout the period of detention, the intention of the Director is to remove/deport the applicant and that has been the only purpose of the applicant’s detention.  I note that the applicant was detained shortly after the Updated Removal Policy came into effect.  HS1 is satisfied.

7.6  I also accept that the Director has acted with diligence and expedition to effect the applicant’s removal.  This is amply demonstrated by the attempts made, despite the applicant’s uncooperative stance, to complete the reentry formalities.  HS4 is satisfied.

7.7  By the time of the commencement of the detention, there was and is no longer any legal impediment to removal (except for a short period from 13 July to 13 September 2023^[6]). The practical obstacle to removal was the applicant’s own uncooperative attitude in completing the reentry formalities.  I accept Mr Lee’s submission that had the applicant chosen to cooperate, his Emergency Travel Document would have been issued earlier, and so the applicant could have been removed (and hence released from detention) earlier.  I think Mr Lee is right in his submission that the applicant has contributed to the length in detention, which factor I take into account and give weight.

7.8  At the hearing, Mr Lee accepted that there was a legal impediment between 13 July to 13 September 20023 during which HCAL 1185/2023 was ongoing. He explained at the hearing, which I accept, that the Director was of the view that those proceedings would be resolved quickly, as the High Court intimated on 23 August 2023 that judgment would be handed down within 4 weeks (and was in fact handed down on 13 September 2023).

7.9  The applicant has no verifiable local connection.  On 28 September 2023, the Immigration Department conducted an interview with the applicant seeking his clarification about his claim that he has a wife who is heavily pregnant. The applicant stated that there was an Islamic religious wedding and that his wife is also an Indonesian overstayer.  The applicant was unable or unwilling to provide further personal details of his wife and his wife has not visited the applicant since the present detention.

7.10  I acknowledge that there is a lack of history of the applicant absconding.  I accept Mr Lee’s submission that taking into account (1) the applicant’s strong unwillingness to return to Indonesia and (2) his uncooperative attitude, the risk of absconding cannot be considered low.  In the particular circumstances of this case, I further accept Mr Lee’s submissions that the applicant’s claim that he has a wife who is herself an overstayer and remains underground heightens such a risk.  Absconding would defeat the primary purpose of effecting removal, for which the power to detain has been conferred.

7.11  In the circumstances of the present case, I further accept Mr Lee’s submission that there is nothing to prevent the applicant from reuniting with his family, albeit in Indonesia and not in Hong Kong, should the applicant’s claimed wife surrender to the Immigration Department.

7.12  I agree with Mr Lee that the applicant’s clear criminal record does not tilt the balance in favour of releasing him on recognizance.

7.13  In so far as the applicant seeks to justify his uncooperative attitude by reason of the fear for his own safety if repatriated, it is an attempt to reassert the concerns underpinning his NRC and, as stated above, the court in his habeas corpus application will not look at the merits of any such claim.

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

8.  Conclusion

8.1  By reason of the above matters, I am satisfied that the applicant’s detention, and likely foreseeable future period of detention, has been and will remain lawful.

8.2  As a result, the applicant’s application is dismissed with no order as to costs.