RAI KALPANA v. DIRECTOR OF IMMIGRATION

HCAL 2348/2023

[2024] HKCFI 653

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2348 OF 2023

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DECISION

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1.   Introduction

1.1  The Applicant is subject to a Removal Order and a Deportation Order respectively made on 9 February 2021 and 24 January 2024.  She has been held in immigration detention since 24 November 2023 pursuant to various sections of the Immigration Ordinance Cap 115 (“Ordinance”).  As at the date of the hearing before me, the Applicant has been detained for 99 days.

1.2  On 27 December 2023, the Applicant applied for a writ of habeas corpus, naming only the Director of Immigration (“Director”)  as the Respondent. Directions were thereafter given for the Respondent to file an initial response (“Initial Response”).  At the hearing, the Applicant was represented by Mr Rob Connelly of counsel and the Respondent by Ms Lynn Hui, Government Counsel, who also signed the Initial Response.  Whilst the present application is made only against the Director, Ms Hui has clarified in the Initial Response that the Secretary for Security (“Secretary”)  is also a relevant party and the Initial Response was lodged, and she appeared, also for the Secretary. I proceed on that basis.

2.   Background

2.1  The following background facts set out at Section C of the Initial Response are not disputed.  

2.2  The Applicant is an Indian National.  She arrived in Hong Kong on 25 April 2019 and was permitted to remain as a foreign domestic helper until 26 April 2020 or two weeks after termination of her employment contract, whichever was earlier.

2.3  On 23 April 2020, she was arrested for entering into a false domestic helper contract and was subsequently convicted of “making a false representation to an Immigration Assistant” and sentenced to 4 months’ imprisonment.

2.4  On 18 May 2020, she indicated her intention to lodge a non-refoulement claim (“NRC”). After she was discharged from prison on 13 July 2020, she was referred to the Immigration Department and subsequently released on recognizance on 11 March 2021.

2.5  On 9 December 2021, the Applicant failed to report recognizance and absconded until she attended the Immigration Department on 3 July 2023 to resume recognizance.  The reason given for her failure to report was that she had no money for transportation or to pay her surety.  On 27 September 2023, it was recommended that the Applicant’s recognizance be resumed.

2.6  Shortly after the resumption of the Applicant’s recognizance, on 24 November 2023, the Applicant’s recognizance ceased, upon which the present detention commenced.

2.7  As regards the Applicant’s NRC and related proceedings, suffice it to point out that they were all determined against the Applicant.  Substantively, the Court of First Instance rejected the Applicant’s application for leave to apply for judicial review on 23 February 2022 (“Leave Application”)[1]. Thereafter, both the Court of First Instance and the Court of Appeal refused to grant extension of time to appeal against the Leave Application respectively on 12 July 2022[2] and 17 February 2023 (“CA Judgment”)[3].  The Court of Appeal subsequently on 27 June 2023 also dismissed the Applicant’s Notice of Motion for leave to appeal against the CA Judgment to the Court of Final Appeal[4]. 

2.8  The only outstanding matter relating to the Applicant’s NRC is the Applicant’s application to the Court of Final Appeal for leave to against the CA Judgment, which is now being processed under the Rule 7(1)  procedure. At the hearing, Mr Connelly was unable to confirm whether the Applicant did in fact lodge submissions on or before 18 August 2023, as directed by the Registrar for showing cause before the Appeal Committee why her application should not be dismissed. 

3.   Present detention and its reviews

3.1  Throughout the current detention, the Applicant has indicated her unwillingness to return to her home country and refused to complete the reentry formalities for the purpose of issuing an emergency travel document.  As matters presently stand, the Consulate General of India is unable or unwilling to issue an emergency travel document as the Applicant has refused to provide a duly signed application form.

3.2  At the commencement of the present detention, recognizance was not recommended on the ground that the Applicant’s removal was going to be possible within a reasonable time.

3.3  The contemporaneous documentation shows that, since early January 2024, a view was formed that the Application’s detention was justified on the bases that (1)  she may constitute a threat/security risk to the community, (2)  she may abscond and/or (re)offend, (3)  she does not have close connection of fixed abode in Hong Kong, and (4)  there are no other circumstances in favour of her release. The foregoing remain the position at present, as set out in the Notice of Detention explained and provided to the Applicant on 2 February 2024 (which the Applicant refused to sign).

4.   The Applicant’s submissions

4.1  On behalf of the Applicant, Mr Connelly in his written material submitted as follows:

(1)  Following the Applicant’s release from prison on 13 July 2020, the Applicant was held in immigration detention for 242 days until being released on recognizance on 11 March 2021 (“Previous Detention”). 

(2)  Although the present detention commenced on 24 November 2023, the Applicant was only interviewed on 19 December 2023.

(3)  The Applicant will comply with the reentry formalities when her application to the Court of Final Appeal is finally determined.

(4)  The Applicant does not pose a threat or security risk to the community, as evidenced by the fact her previous and only conviction did not deter the granting to recognizance following her release from prison.

(5)  There are no sufficient grounds for believing that the Applicant would abscond or (re)offend. He was instructed that the Applicant failed to report recognizance on 2 December 2022 because of a genuine mistake, namely that she did not notice that her reporting frequency had been changed from every 2 weeks to every week. When she attempted to report recognizance on 9 December 2022, she was told to wait for the Immigration Department to contact for a new appointment.  Despite several approaches on her part, she is only recorded as having approached the Immigration Department on 3 July 2023.

(6)  Whilst accepting that the Applicant does not have any local connection, the Applicant has offered surety to the Immigration Department in the form of a permanent Hong Kong resident.

4.2  At the hearing, Mr Connelly submitted, very fairly in my view, that some of the matters raised in his written material should be understood simply as the Applicant’s own subjective view.  For example, he accepted that the present application is only concerned with the present detention, and the Previous Detention has only contributed to the Applicant’s subjective view on the unreasonableness of the present detention.  Likewise, he submitted that the Applicant’s position that she will only render cooperation in the reentry formalities pending the Court of Final Appeal decision is premised on what the Applicant subjectively views as “just”.

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  Under section 32(4A)  of the Ordinance, the detention of a person shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including (1)  whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, (2) whether the person poses, or is likely to pose, a threat or security risk to the community, (3)  whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, including the person not obtaining, or not providing assistance to obtain, any authorization from the relevant authorities of a place outside Hong Kong that is required for the person’s entry to that place and (4)  factors that directly or indirectly prevent or delay the person’s removal that are not within the control of the Director.

5.4  The Court of Appeal has recently provided guidance in Johnson Benjamin v Director of Immigration & Anor [2023] HKCA 1368.  On the issues of an applicant’s refusal to cooperate in completing the reentry formalities , Au JA said:

“ [29(3)] 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.

…

[37] Second and in any event, with the greatest respect, we have reservation as to whether the observations in R(Lumba) are necessarily correct. In our view, even if there is an ongoing non-refoulement claim, there is no reason in principle why it is not reasonable to expect an applicant to cooperate with the relevant authorities to obtain the necessary travel document to facilitate his removal once the non-refoulement claim is disposed of. In other words, we do not see in principle why such uncooperative behaviour on the part of an applicant should only be limited to the consideration of the risks of absconding but not also to the wider question of whether any additional period of detention resulting from such behaviour shall be considered as reasonable or not.” (original emphasis)

6.   Analysis

6.1  During the present detention, the Applicant for different periods is or has been detained pursuant to sections 32(3A), 29(1), 29(2)  and 32(3)  of the Ordinance. It follows therefore that there has been prima facie lawful authority to detain the Applicant.

6.2  The question which falls for determination is whether the detention has become unreasonable in all the circumstances, and hence unlawful.  The starting point is the period of detention, namely 99 days, against which the various other factors must be weighed and balanced.

6.3  I accept that, throughout the period of detention, the intention of the Director/Secretary is to remove/deport the Applicant and that has been the only purpose of the Applicant's detention.  HS1 is satisfied.  I also accept that the Director / Secretary have acted with diligence and expedition to effect the Applicant's removal.  HS4 is satisfied.  Indeed, Mr Connelly has very fairly accepted the foregoing to be the case.

6.4  For the reasons set out at section 4 above, Mr Connelly contends that HS2 and HS3 are not satisfied.  He reasons, in particular, that if there is no risk that the Applicant would abscond (which would defeat the primary purpose of effecting removal for which the power to detain has been conferred), then any extended period of detention is unnecessary and therefore unreasonable.

6.5  In the light of the Applicant’s relatively “light” criminal record and its nature, I am persuaded that the Applicant does not pose or is unlikely to pose a threat or security risk of the community.

6.6  I do not see the relevance of the Previous Detention.  The issue which I need to determine in the present application is whether the Applicant should be released from her current detention.  As pointed out by Ms Hui, there is a significant time gap between the Previous Detention (ended on 11 March 2021)  and the current detention (commenced on 24 November 2023).  Indeed, Mr Connelly accepted that the current detention should be assessed on its own merits. 

6.7  I do not accept the Applicant’s explanation set out at §4.1(5)  above in respect of her previous failure to report recognizance.  The Applicant’s instructions to her solicitors do not feature in her affirmation in support of the present application and are at odds with the contemporaneous records, which show that efforts by the Immigration Department to contact the Applicant were in vain and that the Applicant’s explanation at the time was her lack of financial means for transportation and paying her surety.  Despite the foregoing, I am unable to agree with Ms Hui that the Applicant’s previous absconding record, coupled with the lack of fixed abode and local connection, justify the view that there is a significant risk of absconding.  As set out at §2.5 above, a decision was made on 27 September 2023 to resume the Applicant’s recognizance after the Applicant failed to report in December 2022.  Whilst I cannot dismiss there is an absconding risk, I do regard the degree of such risk warrants significant weight to be placed on it.

6.8  In my view, the important factor in the present case is the guidance provided in Johnson Benjamin.  The guidance provided by the Court of Appeal, which is consonant with section 32(4A)(d)  of the Ordinance, is that there is no reason in principle why it is not reasonable to expect an applicant to cooperate with the relevant authorities to obtain the necessary travel document to facilitate his removal once the non-refoulement claim is disposed of.  In other words, in principle there is no reason why such uncooperative behaviour on the part of an applicant should only be limited to the consideration of the risks of absconding but not also to the wider question of whether any additional period of detention resulting from such behaviour shall be considered as reasonable or not: §5.4 above. 

6.9  In the above regard:

(1)  it is plain that under the Updated Removal Policy which came into effect on 7 December 2022, as at the commencement of current detention, there was no longer any legal impediment to the Applicant’s removal;

(2)  the contemporaneous records show that it was consistently explained to the Applicant that her failure to cooperate with reentry formalities would impede her removal (and hence her release from detention);

(3)  the Applicant’s position that she would only comply with the reentry formalities upon the finalization of her application to the Court of Final Appeal is therefore a self-imposed obstacle to her removal (and hence release from detention); and

(4)  I do not place weight of the Applicant’s subjective sense of what is “just”, namely she should be given indulgence to await the outcome of her application to the Court of Final Appeal; were it otherwise, it would render the Updated Removal Policy otiose.

6.10  I am therefore entitled to and do take into account the Applicant’s refusal to cooperate in completing the reentry formalities in assessing whether any additional period of detention resulting from such behaviour shall be considered as reasonable or not.

6.11  Mr Connelly accepted that the decision to cease recognizance on 24 November 2023, on the basis that the Applicant’s removal was imminent, cannot be said to be unreasonable.  From that (reasonable)  starting point, the Applicant has since the commencement of the present detention refused to provide the necessary cooperation. 

6.12  Viewed in the above light (in particular the matters set out at §6.9 above), I am of the view that HS2 and HS3 are also satisfied. 

7.   Conclusion

7.1  I am satisfied that the Applicant's detention, and likely foreseeable future period of detention, has been and will remain lawful.

7.2  As a result, the Applicant's application is dismissed with no order as to costs.