AMANDEEP SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1575/2023

[2023] HKCFI 2693

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1575 OF 2023

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BETWEEN

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REASONS FOR DECISION

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1.  Introduction

1.1  The applicant is subject to a Removal Order made on 17 August 2016. He has been held in immigration detention since 29 July 2023. As at the date of the hearing before me on 16 October 2023, the applicant has been detained for a period of 80 days. The applicant’s detention was initially pursuant to section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”). As will be seen below, from 13 October 2023 onwards, the applicant’s detention has been under section 29(1) of the Ordinance.

1.2  On 5 September 2023, the applicant applied for a writ of habeas corpus. Directions were given for the respondents to file an initial response^[1], which were complied with by the 1^st respondent. At the hearing, the applicant appeared in person, with the benefit of an interpreter, and the Director was represented by Ms Augusta Wong, Government Counsel, who also signed the initial response.

1.3  At the conclusion of the hearing, I dismissed the application with no order as to costs.

1.4  These are the reasons for my dismissal of the application.

2.  Background

2.1  The applicant is an Indian National born on 29 October 1986. He arrived in Hong Kong on 1 March and was permitted to remain as a visitor until 16 March 2016. He has since overstayed in Hong Kong.

2.2  On 17 March, the applicant surrendered to the Immigration Department and was released on recognizance on 26 April 2016.

2.3  As stated above, a Removal Order was made against the respondent on 17 August 2016, which order remains valid.

2.4  Whilst an overstayer, on 11 August 2016, the applicant indicated his intention to lodge a non-refoulement claim (“NRC”). In short, the applicant’s NRC was first rejected by the Director on 10 May 2018 and later dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”) on 18 June 2020.

2.5  On 24 March 2021, the applicant applied for leave to apply for judicial review against the TCAB’s decision of 18 June 2020 out of time (HCAL 426/2021).

2.6  On 6 September 2023, the Department of Justice (“DoJ”) made a request to the Registrar of the High Court for priority to be accorded to HCAL 426/2021 as the applicant was detained. Thereafter on 20 September 2023, the DoJ made the same request, on this occasion informing the court that the applicant has taken out the present application which was scheduled to be heard on 16 October 2023.

2.7  On 10 October 2023, DHCJ To dismissed HCAL 426/2021, on the bases that there was substantial and unexplained delay and that the leave application was in any event without merit.

2.8  Following the dismissal of HCAL 426/2021, arrangements were put in place to repatriate the applicant. At the hearing before me, Ms Wong provided two updates since the filing of the initial response.

(1) A repatriation flight has been booked for 31 October 2023.

(2) On 12 October 2023, approval was obtained from the Secretary to detain the applicant pursuant to section 29(1) of the Ordinance. Ms Wong submitted that as there was no longer any legal impediment as a result of the Updated Removal Policy which took effect from 7 December 2022, it was reasonable to expect that a deportation order will be obtained before the planned repatriation.

3.  Criminal and absconding records

3.1  During his release on recognizance, the applicant was arrested for and convicted of a number of criminal offences.

(1) On 21 July 2016, the applicant was convicted of “Breach of condition of stay”, for which he was sentenced to 2 weeks’ imprisonment suspended for 3 years.

(2) On 23 December 2020, the applicant was arrested for “Possession of dangerous drugs”. He was convicted and was sentenced to 2 weeks’ imprisonment suspended for 12 months on 15 May 2021.

(3) On 6 January 2021, the applicant was arrested for “Theft”. He was convicted and sentenced to 1 week’s imprisonment on 8 January 2021.

(4) On 14 May 2021 and 29 March 2022 respectively, the applicant was arrested for being a wanted person for two separate “Possession of dangerous drugs” cases.

(5) On 25 November 2021, the applicant was arrested for “Possession of dangerous drugs”. He was convicted and his suspended sentence was also activated. He was sentenced to a total of 4 months and 2 weeks’ imprisonment on 20 April 2022.

(6) On 31 May 2023, the applicant was arrested for “Theft”. He was convicted of 3 counts of “Theft” and was sentenced to a total of 2 months and 4 week’s imprisonment on 19 June 2023.

3.2  On 6 October 2023, the applicant was brought before the Kowloon City Magistrates’ Courts in respect of his outstanding case of “Non-payment of fine”. He was ordered to pay the fine on or before 5 April 2024.

3.3  The applicant also failed to report recognizance on a number of occasions.

(1) On 26 April 2016, the applicant was released on recognizance. Since 21 July 2020, he had failed to report recognizance for 1 month until he was rearrested by the police on 21 August 2020.

(2) On 26 March 2021, the applicant was released on recognizance. Since 4 June 2021, he had failed to report recognizance for nearly 5 months until he was rearrested by the police on 25 November 2021.

3.4  Further, the applicant failed to comply with court or police bail on a number of occasions, on 17 September 2020 (until he was rearrested in 23 December 2020), on 1 April 2021 (until rearrested on 14 May 2021) and on 3 December 2021 and 17 February 2022 (until rearrested on 29 March 2022).

3.5  Relevant to the assessment of the risks of the applicant absconding, the applicant is married in India with 2 sons and has no local ties or connections in Hong Kong.

4.  The applicant’s detention and reviews of detention

4.1  On 29 July 2023, the applicant was discharged from prison and referred to the Immigration Department for action. He has since been detained in Tai Tam Gap Correctional Institution. As stated at §1 above, he was initially detained pursuant to section 32(3A) of the Ordinance, and since 13 October 2023, section 29(1).

4.2  On 15 September 2023, the Immigration Department conducted a review of the applicant’s detention under section 32(3A) of the Ordinance. The Director considered that releasing the applicant on recognizance was not warranted. It may be gleaned from the documentation that the Director took into account of the following matters.

(1) Assistance from the High Court had then already been sought to accord priority to HCAL 426/2021 and there was no reason to believe that it could not be finalized within reasonable time in the foreseeable future;

(2) the applicant’s passport was still valid^[2];

(3) the applicant was unwilling to return to his home country;

(4) there were real risks of reoffending and absconding.

4.3  On 12 October 2023, the Secretary authorized the applicant’s detention under section 29(1) of the Ordinance (to commence on 13 October 2023) on the following broad bases:

(1) the inquiry as to whether the applicant ought to be deported is going to be concluded in the near future;

(2) the applicant may constitute a threat/security risk to the community;

(3) the applicant may abscond/(re)offend;

(4) the applicant does not have close connection or fixed abode in Hong Kong;

(5) there are no other circumstances in favour of the applicant’s release.

5.  Steps towards removal/deportation

5.1  As stated above, a repatriation flight has been booked for 31 October 2023 and the applicant has a valid travel document.

5.2  As result of the resolution of HCAL 426/2021, there is no longer any legal impediment in respect of the applicant’s removal from Hong Kong pursuant to the valid and extant Removal Order. I further agree with Ms Wong’s submission that, given the applicant’s previous troubles with the law, it is reasonable to expect that a deportation order will be made pursuant to section 20(1) of the Ordinance before the applicant’s repatriation flight on 31 October 2023.

6.   The applicable principles

6.1  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.

6.2  In particular, I remind myself that the burden is on the respondents to an application for a writ of habeas corpus to justify the lawfulness of the applicant’s detention.

7.  The applicant’s submissions

7.1  At the hearing before me, the applicant essentially adopted his written materials, which has been summarized by Ms Wong (which summary was not disputed by the applicant at the hearing) as follows.

(1) HS1 is not satisfied as the power to detain the applicant is being used for purposes other than to effect deportation.

(2) HS2 is not satisfied as the reason for which the applicant is detained is not a crime.

(3) HS3 is not satisfied as the reasonable period has by now expired.

(4) Guarding the risk of reoffending is not the purpose of detention. The applicant regrets putting himself in a position that has led to his present situation.

(5) The applicant has applied for legal aid and is waiting for the result in HCAL 426/2021.

(6) While he does not have family in Hong Kong, the applicant has friends who can provide a fixed abode.

7.2  In his oral submissions, the applicant relied on the need to pay a court fine (§3.2 above) as a reason for his continued stay in Hong Kong.

8.  Analysis

8.1  Throughout the applicant’s detention period, there has been prima facie lawful authority to detain the applicant, initially pursuant to section 32(3A) and subsequently section 29(1) of the Ordinance.

8.2  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 80 days against which the various other factors must be weighed and balanced.

8.3  I accept that, throughout the period of detention, the intention of the Secretary/Director is to remove/deport the applicant and that has been the only purpose of the applicant’s detention. HS1 is satisfied.

8.4  I also accept that the Director has acted with reasonable diligence and expedition to effect the applicant’s removal. This is amply supported by the requests made to the court to expedite the determination of HCAL 426/2021, and with its resolution, the arrangements made for the repatriation of the applicant on 31 October 2023. HS4 is satisfied. Indeed, I note that the applicant has not raised any specific ground to challenge HS4.

8.5  I am also persuaded that HS2 is satisfied. The applicant was initially detained follow his release from prison, and the previous convictions and failures to report recognizance and/or bail justify the assessment that there were real risks of reoffending and absconding. The latter risk, further justified by the applicant’s lack of local ties, if materialized, would defeat the purpose of the detention and the intended effect of the Removal Order, and as should be imminent, the Deportation Order.

8.6  As regards HS3 given the resolution of HCAL 426/2021 and the availability of a valid travel document, subject to the applicant being uncooperative, I do not see any impediment in the way of effecting the applicant’s removal/deportation on 31 October 2023. I further agree with Ms Wong’s submission that the applicant’s outstanding obligation to pay a court fine is not an impediment. The applicant may arrange payment from outside Hong Kong. HS3 is satisfied.

8.7  I should point out that should the upcoming repatriation arrangement become abortive due to the applicant being uncooperative, this factor, on its own, is likely only relevant to an assessment of HS2. In all likelihood, such uncooperative attitude will reinforce an assessment that there are real risks of absconding, if released from detention, and therefore has the effect of justifying further detention.

9.  Conclusion

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

9.2  At the conclusion of the hearing, I therefore dismissed the present application with no order as to costs.