SHEIKH MOHAMMOD SUBUJ v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1307/2022

[2022] HKCFI 3779

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1307 OF 2022

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J U D G M E N T

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A. Introduction

1.  The Applicant is the subject of a Deportation Order made on 25 April 2022 pursuant to section 20 of the Immigration Ordinance Cap 115 (“Ordinance”).  He has been held in immigration detention since 9 April 2022 pending his deportation.  To the date of hearing, the period of detention has lasted 259 days or around 8½ months.

2.  On 22 November 2022, the Applicant applied for a writ of habeas corpus on grounds identified in his supporting affirmation.

3.  I gave directions for the Respondents to file an Initial Response, and so as to bring the matter to a hearing on 23 December 2022.  At the hearing, the Applicant appeared in person with the benefit of a Bengali/English interpreter.  The Respondents were represented by Ms Augusta Wong, Government Counsel.

B.  Factual Circumstances

B.1  Immigration Status

4.  The Applicant is a Bangladeshi national born in 1992.  He was first sighted and arrested by the Police in Hong Kong in 2013, as a suspected illegal immigrant.  His status as an illegal immigrant was later confirmed on his own admission.  In the same year, he raised a torture claim/non-refoulement claim (“NRC”).

5.  On 31 March 2014, a Removal Order was issued against him.  But, as will be further set out below, the Removal Order was not put into effect due to the NRC and the related judicial review proceedings he raised in the years that followed.  In 2017, his Bangladeshi passport also expired which had to be replaced before removal could be effected.

6.  On 25 April 2022 – after the present detention had commenced – the Applicant was also made subject to a Deportation Order under section 20(1), which authorizes the issuance of such an order if an immigrant has been found guilty of an offence punishable with not less than 2 years’ imprisonment or if such an order or the order is deemed conducive to the public good.

B.2  Criminal Record

7.  On 18 January 2021, the Applicant was convicted of the offence of taking employment while being a person in respect of whom a removal order is in force.  He was sentenced to 22 months and 2 weeks’ imprisonment.  His appeal against conviction was dismissed on 3 September 2021.

8.  Apparently the Applicant also has had other entanglements with the law enforcement authorities in the past.  He was intercepted or arrested on other occasions on suspicions of having committed other offences (including of assault occasioning actual bodily harm), but no charges were laid on those occasions.

B.3  Non-refoulement Claim and Related Proceedings

9.  As said, the Applicant raised an NRC in 2013. From 2014 to 2018, his NRC was processed under the Unified Screening Mechanism (“USM”).  By July 2018, he had exhausted all the administrative avenues afforded to him under the USM, meaning that his NRC on all applicable grounds had already been rejected by the Director and then the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”).

10.  In August 2018, he sought leave from the Court of the First Instance (“CFI”)  to judicially review the Board’s decision.  In May 2021, the CFI dismissed the leave application (“Leave Decision”).

11.  Therefore, by the time the present detention commenced on 9 April 2022, there had been no extant legal proceedings related to the Applicant’s NRC for almost a year.

12.  However, on 22 April 2022, I think likely as a response to the present detention, the Applicant filed a summons seeking an extension of time from the CFI to appeal against the Leave Decision.  As shown in the chronology, the application was almost 10 months late by then.  

13.  The summons was heard on 22 June 2022, and dismissed on 6 July 2022.  In [2022] HKCFI 2014, the Judge quoted the grounds for extension as put in the Applicant’s supporting affirmation.  Broadly, the Applicant said (a)  the Judge did not give him a chance to clarify his case and the situation in his country and (b)  he never received the Leave Decision because he was in prison and he only learned about it from his case officer after the present detention began.  The Judge noted that the Applicant had failed to put forth any proper or valid draft or proposed grounds of appeal, or any particular of any error in the Leave Decision or why it may reasonably be argued that the decision was unfair or unreasonable.  The Applicant did not ask for an oral hearing for his leave application.  Nor did he do that at the oral hearing of the summons despite being invited by the Court to do so.

14.  The Judge noted that the Leave Decision was delivered to the Applicant’s last known residential address in the Court’s records and was not returned as undelivered.  The Applicant did not update the Court with his address after, as he said, he went into prison despite that he was under a duty to do so.  In any event, the Judge concluded that it would be futile to extend time for what appears to be a hopeless appeal.

15.  On 18 July 2022, the Applicant took out a summons to appeal to the Court of Appeal (“CA”)  in CAMP 257/2022.  In that summons, the Applicant sought leave to appeal against the Leave Decision out of time and to advance a new sole ground of appeal.  The new sole ground was not actually identified in the summons.  CAMP 257/2022 has not yet been decided by the CA. By letter dated 2 December 2022, the DoJ has urged the CA to accord priority to this case.

B.4  Detention and Reviews

16.  On 9 April 2022, the Applicant was discharged from prison for the conviction alluded to above.  Since then he has been kept under immigration detention.  He was initially detained under section 29 of the Ordinance pursuant to the powers for inquiry as to whether a Deportation Order should be issued.   The Deportation Order was issued on 29 April 2022 and he has since then been detained under section 32(3)  of the Ordinance pending his deportation.

17.  During the period of the present detention, his detention was reviewed three times.  For the latest review, on 12 December 2022, the Director sought a review of detention by the Principal Assistant Secretary who considered that there were grounds for continued detention.  A Notice of Review of Detention was served on the Applicant on 15 December 2022. Amongst other things, the Notice identifies the following factors justifying continued detention:

(1)  The Applicant’s removal from Hong Kong is imminent or immediate repatriation is arranged for his departure.  His application for leave to judicial review was dismissed by the CFI in May 2021. Under the updated removal policy (see further below), outstanding appeal proceedings in CAMP 257/2022 do not form an impediment to deportation.

(2)  He was convicted of taking employment while being a person in respect of whom a removal order is in force, whilst released on recognizance.

(3)  Following from point (2)  is that, he had been convicted of crime of a serious or violent nature, he had breached his conditions of recognizance, he was re-arrested during recognizance and he is likely to engage in unlawful employment or business if released from detention.

(4)  There are no other circumstances in favour of his release.

18.  Recently, the Government updated the removal policy, taking effect as from 7 December 2022.  Under the updated removal policy, ImmD may generally proceed with removal from Hong Kong of an unsubstantiated NRC claimant upon either (a)  the CFI’s dismissal of an application for leave to apply for judicial review (including an occasion for an extension of time to make an application for leave)  or (b)  if leave has been granted for a judicial review, upon the CFI’s dismissal of that application for judicial review.  This explains the comments in the Notice that there is no legal impediment to the Applicant’s removal even though the CA has not yet given a decision on the Applicant’s summons for extension of time in CAMP 257/2022.

B.5  Other Steps to Removal

19.  The Applicant’s Bangladeshi passport has expired.  The Director has been actively liaising with the Bangladeshi Consulate General for the purpose of obtaining a replacement travel document since, indeed, March 2021 which was more than one year before the present detention commenced.  The progress has not been smooth because the Applicant was reluctant to go through the necessary formalities.  He refused to submit a re-entry application or attend an interview with the Consulate General on multiple occasions throughout the year of 2022. 

20.  But as result of the Director’s efforts, some progress has been made.  On 23 March 2022, the Consulate General verified the Applicant’s identity and assured the Director of the Applicant’s re-entry.  On 3 November 2022, the Bangladeshi Consulate General conducted an interview with the Applicant.  On 16 December 2022, the Consulate General, in reply to the Director’s request for special attention in light of the Applicant’s uncooperativeness, replied that the Applicant’s case was under their consideration.

21.  The Director expects that a travel document will be issued within 1 to 2 weeks upon all re-entry formalities as required by the Bangladeshi Consulate General are met and the Applicant would be deported within a reasonable time.

C.  Applicable Principles

22.  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.

23.  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.

24.  I have applied those principles as applicable to the particular circumstances of this case.

D.  Applicant’s Submissions

25.  In his affirmation/written submissions filed in support of his application, the Applicant stated the grounds of his application as being that the detention has become unreasonable and therefore unlawful, the detention is a breach of the principle of liberty, and the detention is a breach of the Hardial Singh principles.  In his written submissions, the Applicant enlarged on those grounds, broadly as follows:

(1)  He is now detained pending deportation.  The Deportation Order was made based upon his only criminal record and he strongly disagrees with the Director that the offence he committed was a serious one. 

(2)  There is no reasonable belief that his removal could be effected within a reasonable time because he still has on-going legal proceedings related to his NRC, i.e. CAMP 257/2022.  He does not have a travel document and the Director did not even try to confirm his identity with the Consulate General.

(3)  The Director’s failure to confirm his identity also means that they did not pursue the removal with reasonable diligence and expedition.

(4)  He will not abscond.  There is no reason to believe that he will fail to sign his recognizance.

(5)  He does not plan to take up any illegal employment.  

(6)  He does not pose any security risk to the community.

(7)  He has been detained for almost 9 months which is unlawful.

(8)  The Director is using his detention powers for purposes other than removal.

26.  At the oral hearing, the Applicant made a number of submissions which might be broadly summarised as follows:

(1)  He has already been detained for nearly 9 months, and there is no reason why he should not now be released.

(2)  Many other persons held in CIC have been released, and he questions why he has not been released.

(3)  He has been convicted of only one offence, to which he pleaded not guilty.  He has no other criminal record over the almost 10-year period that he has been in Hong Kong.

(4)  He is not harmful to society, and he in any event promises not to commit any other crime.  The only offence of which he has been convicted did not involve any violence.

(5)  Though he has been intercepted by the Police on other occasions, no charges were laid, and it would be wrong if someone else’s activity comes back on him.

(6)  He has regularly reported when required, and responded by presence when requested by the ImmD.  So he will not abscond, and is prepared to take an oath to say so.

(7)  Whilst he has no relatives here and no fixed abode, he does have friends.  One of them can be a guarantor, and that person is present in Court.

(8)  His torture claim is still in process, and is ongoing.

(9)  The only reason why he has refused to cooperate with the Bangladeshi Consulate in obtaining a new travel document is because he is scared that he will be repatriated, and his life is really in danger if he goes back.

27.  I bear all these points in mind in my overall assessment below and make references to them as appropriate.

E.  Whether Detention Has Become Unlawful

28.  There was and remains clear prima facie lawful authority for the detention of the Applicant.  The question then arises whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

29.  The starting point is the Applicant has already been detained for the period of 259 days, or 8½ months.  It is against that period that the other factors are to be weighed and balanced.

30.  I accept that the Secretary/Director do intend to deport the Applicant and are only using the power to detain for that purpose.  HS1 is satisfied.

31.  Further, the Secretary/Director have acted with reasonable diligence and expedition to effect removal, including by actively pursuing the issuance of a replacement travel document for the Applicant, despite his lack of cooperation.  The Applicant’s submission that the Director did not even try to verify his identity with the Bangladeshi Consulate Generate is mistaken.  HS4 is satisfied.

32.  I acknowledge that 8½ months is a not insubstantial period.  But it must be noted that it was the Applicant himself who put in place the two major obstacles which might be thought to have lengthened the period of the present detention.  I have already pointed out that the Applicant only applied for extension of time to appeal against the Leave Decision almost 10 months late and after the present detention commenced, likely as a response to the present detention.  The Judge’s reasoning for refusing the extension clearly shows that the proposed appeal is a hopeless one.  The failure to set out the alleged “new sole ground” for appeal in the summons for CAMP 257/2022 only smacks of a further attempt to keep alive a legal impediment to his own removal.  It is reasonable to expect that CAMP 257/2022 may be decided fairly soon.  In any event, as of 7 December 2022, the Director will no longer see CAMP 257/2022 as an impediment to the Applicant’s removal.

33.  As to the Applicant’s expired Bangladeshi passport, the Director has been actively pursuing the issuance of a replacement and the process could have been much smoother had the Applicant been less uncooperative.  The Bangladeshi Consulate is now actually processing a new travel document, which should be wish you had within one or two weeks after all entry requirements have been met.

34.  Therefore, the Applicant will likely be removed/deported soon.

35.  The Applicant has a record of only one criminal offence, and the offence committed was not of a violence nature.  But I agree with the Director that the offence was nonetheless a fairly serious one, as reflected in the sentence of 22 months and 2 weeks.  I accept that the Director is entitled to give weight to the fact that he was arrested for this offence whilst on recognizance and to assess that the Applicant may pose a threat to the community.  I also attach weight to that factor, and I do not think the non-violent nature of the offence significantly lessons that weight in this context.  But I do not place any great weight on the fact that the Applicant was intercepted by Police on other occasions, when no charges were subsequently laid.

36.  There is also a real risk of absconding, given the Applicant’s clear unwillingness to return to India, his own uncooperative attitude towards obtaining a replacement travel document, and his lack of close local connections.  Indeed, at the hearing today the Applicant has emphasised that he chose not to cooperate in obtaining a travel document for the sole reason that he does not want to return to Bangladesh.  If the Applicant were to be released on recognizance and then abscond, that would frustrate the purpose of the Deportation Order.

37.  Looking at matters overall and balancing all factors against the period of detention of about 8½ months, I am satisfied that the Applicant has been detained for, and will likely continue to be detained only for, a period that is reasonable in all the circumstances.  The detention has not become unlawful.

F.  Result

38.  As a result, I dismiss the Applicant’s application for a writ of habeas corpus, with no order as to costs.