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HCAL 134/2014
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 134 OF 2014
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BETWEEN
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BHULLAR ANGAD SINGH |
Applicant |
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and
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HONG KONG SAR GOVERNMENT |
Putative
Respondent |
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Before: Hon Au J in Court
Date of Hearing: 17 October 2014
Date of Judgment: 17 October 2014
Date of Reasons for Judgment: 21 October 2014
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R E A S O N S F O R J U D G M E N T
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1. This is the applicant’s application for the issue of a writ of habeas corpus, which was filed with the court in the afternoon on 16 October 2014.
2. At the court’s directions, the putative respondent appeared on 17 October 2014 and was represented by Mr Lawrance Chan of the Department of Justice.
3. After hearing submissions, I refused the application with brief reasons. I also said I would provide a more detailed written reasons later. This is what I now do.
THE FACTS
4. The applicant is an Indian national. He last sought to enter Hong Kong on 18 May 2014 from Macau. He then lodged (for the second time – see below) a non-refoulement claim, saying that his life is in danger if he is to be returned to India.
5. He was refused entry on 19 May by the Director of Immigration (“the Director”) and has since been detained.
6. The Director has sought to promptly process the applicant’s non-refoulement claim under the Unified Screening System after it has been lodged. However, the applicant has repeatedly failed to attend the interviews arranged by the Director for the purpose of processing and determining his non-refoulement claim. There were two occasions where his legal representative assigned under the Duty Lawyer Scheme was unavailable at the arranged interview time. There were also a number of other occasions where the applicant claimed to be feeling unwell and thus was unable and refused to proceed with the interviews as arranged. For the present purpose, the Director has produced copies of medical examination records showing that the applicant was certified (after claiming to be unwell) to be in satisfactory physical and mental condition and fit (or should be fit) for attending interviews.
7. Be that as it may, the fact is that the applicant has up till the date of this hearing not properly attended and completed any of these interviews because of these reasons.
8. Further, the relevant facts leading to and regarding the applicant’s detention have been helpfully summarised and set out by Mr Chan in the Chronology prepared by him for the hearing. This has been interpreted to the applicant before the hearing, and he has confirmed to this court that he does not dispute those facts set out in the Chronology. Thus, for convenience, I have annexed the Chronology to this judgment as part of the factual background under this application.
9. The Director through Mr Chan has also undertaken to file (through his officer) an affirmation or affidavit by Wednesday (22 October) to confirm everything that has now been set out in the Chronology and in support of his opposition to the habeas corpus application, and to exhibit all the documents that he has produced in the hearing bundle as proper evidential records.
10. In the premises, for the purpose of disposing of the habeas corpus application, I have adopted that factual matrix in this judgment as undisputed. This judgment should therefore be read in the understanding that if it turns out that what have been set out in the Chronology cannot be properly confirmed by the above-mentioned affirmation, the court will revisit this decision again.
THE PRESENT APPLICATION
11. It is trite that in determining the merit of an application for a writ of habeas corpus, the fundamental question that the court has to decide is whether the detention is unlawful, and there are two aspects of it. First is whether there is legal authority to make the subject detention under the proper and relevant laws or legislations, and secondly, whether the applicant has since been detained for such an unreasonably long period of time which renders an initially lawful detention unlawful. See respectively Fidelis Aqhuwaraezeama Emem v Superintendent of Victoria Prison [1998] 2 HKLRD 488 at 453C-D and 455A-B per Stock J (as he then was) and R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 at 706D-F as applied in Hong Kong by the Court of Appeal in A (Torture Claimant) v Director of Immigration [2008] 4 HKLRD 752, at paragraphs 26-31.
12. In this case, there is no doubt that the Director has initial proper lawful authority to detain the applicant since 19 May 2014 under s 32(1)(a) of the Immigration Ordinance (Cap 115) (“the IO”) pending removal under s 18(1)(a) thereof. There is also no doubt that thereafter, the Director also has lawful authority to continue to detain the applicant under s 37ZK of the IO pending the final determination of his torture claim.
13. Insofar as the present application is concerned, the applicant’s only ground in support of the application (as set out in his affirmation) is basically that he has been detained for an unreasonably long period of time (some 146 days) since he has lodged his present non-refoulement claim on 18 May 2014, as there has yet to be a determination thereof.
14. I am not persuaded by the applicant’s contentions for the following reasons.
15. The legal principles governing whether a detention is unlawful as it has been made for an unreasonably long period are well established, and can be summarised as follows.
16. The statutory power of detention is generally one which is impliedly limited to a period which is reasonably necessary for that purpose: R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704 at 706D-F[1].
17. The Director has a discretion in respect of the continued detention of a person pending his deportation. Pending deportation means no more than “until” deportation, and so long as the Director is intent upon removing a person at the earliest possible moment and the Director remains reasonably of the view that he can do so within a reasonable period of time and that it will not be impossible for him to remove the person within that reasonable period of time, then the Director is entitled to continue to detain in the exercise of his discretion: Mahesh Rai v Secretary for Security and the Director of Immigration (HCAL 81/2008, 21 August 2008, Hartmann J) at paragraph 12; A (Torture Claimant), supra, at paragraph 31.
18. What is reasonable is dependent on the circumstances of each case and is not to be assessed with hindsight: Mahesh Rai, supra, at paragraphs 16-17.
19. Applying these principles, it is clear to me that the period of the applicant’s detention so far cannot be said to be unreasonably long when viewed in the circumstances of the present case:
(1) From the facts as looked at the relevant time, there is nothing that can show that it was unreasonable for the Director to be under the view that the applicant’s non-refoulement claim could be determined expeditiously within a reasonable time, and thus the applicant would be either released from detention (if the applicant was successful) or returned to India (if unsuccessful) also within a reasonable time. This should also be viewed in the context that the applicant had previously come to Hong Kong in 2013 but withdrawn voluntarily his then torture claim and did not lodge any torture claim when he was removed to Bangkok as he was refused entry in February this year.
(2) The fact that the present non-refoulement claim’s process has been repeatedly delayed by events beyond the control of the Director (ie, the unavailability of the applicant’s lawyer and the applicant’s repeated claim of feeling unwell each time the interview was supposed to take place) on an ad hoc basis could not in my view render unjustified the Director’s view at each of those occasions when the interview was supposed to take place that the claim could be determined within a reasonable time. There is nothing to show that the Director should and could foresee that each time when the interview has been arranged, it would then be caused to be cancelled for these reasons. It is surely not the applicant’s case that these reasons are self and pre-meditated and would bound to continue (and if that was the case, I cannot see how this would then justify the applicant’s habeas corpus application by deliberately lengthening his own detention himself).
(3) Further and in any event, there was supposed to be another interview arranged in the morning of 17 October (ie, the date of this hearing) for the purpose of the non-refoulement claim. Again, the applicant claimed to be feeling unwell and with a back pain and refused to attend and complete it. Given that the interview again has been caused to be cancelled, Mr Chan confirmed to this court at the hearing that the Director has now decided to proceed to determine the non‑refoulement claim on the basis of all the information and materials that have already been provided by the applicant in his submitted application without any further interviews to be arranged. In these circumstances, I accept that it is more so that there are good reasons for the Director to believe that the non‑refoulement claim could be determined within a reasonable time.
20. I therefore accept that there is ample evidence to show that the Director has intent upon removing or releasing the applicant at the earliest possible moment upon the determination of the non-refoulement claim, and the Director remains reasonably of the view that he can do so within a reasonable period of time and that it will not be impossible for him to remove or release the applicant within that reasonable period of time. There is thus no unlawfulness in the detention so far.
21. I therefore refused the habeas corpus application with no order as to costs.
22. I would also take this opportunity to thank Mr Chan for rendering his assistance to the court within short notice.
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(Thomas Au)
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Judge of the Court of First Instance |
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High Court |
The applicant appeared in person
Mr Lawrance Chan GC, of the Department of Justice, for the putative respondent
Annex
Chronology of events
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Date
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Events
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17.05.2013
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Applicant arrived in HK and was allowed to stay as a visitor until 31.5.2013.
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01.06.2013
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Applicant did not leave Hong Kong as required and overstayed.
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25.06.2013
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Applicant was arrested by the Police.
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26.06.2013
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Applicant was handed over to ImmD for follow up actions.
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27.06.2013
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Applicant raised a torture claim.
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15.07.2013
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Applicant’s torture claim was considered made. Photograph and fingerprints of Applicant were taken.
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06.08.2013
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A “Notice to Persons Making a Torture Claim under Part VIIC of the Immigration Ordinance, Cap. 115” and a torture claim form were served on Applicant.
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09.08.2013
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Applicant was released on recognizance.
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29.08.2013
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Applicant’s torture claim form was received from the Duty Lawyer Service (“DLS”). Screening interview was arranged on 09.10.2013.
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27.09.2013
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Applicant wrote to ImmD to withdraw his torture claim.
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03.10.2013
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It was decided that the torture claim was treated as withdrawn. Applicant was informed that the case was closed and no further action would be taken.
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21.10.2013
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The Applicant was removed back to India under an RO.
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10.02.2014
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Applicant flew from Bangkok to HK. Upon interview at the Airport, he said that he was unemployed; had 600 Thai Bhat in hand and intended to visit HK for 4 days for sightseeing. He was subsequently refused permission to land.
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11.02.2014
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Applicant was removed back to Bangkok. No torture claim was raised.
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18.05.2014
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Applicant arrived in HK from Macau.
He lodged a non-refoulement claim with ImmD by a written representation.
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19.05.2014
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Applicant was refused permission to land and detained under s.32(1)(a) of IO pending removal.
Applicant’s claim for non-refoulement protection was referred to the Removal Assessment Section (“RAS”) for assessment. As Applicant’s non-refoulement claim involves a subsequent claim element, RAS hence conducted record check and retrieved Applicant’s previous torture claim records for consideration as if the subsequent claim under s.37ZO of IO is made.
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21.05.2014
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Applicant’s request to raise subsequent torture claim was assessed and allowed by RAS.
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22.05.2014
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“Notice to Person Making a Non-refoulement Claim”, “Non-refoulement Claim Form” (“NCF”), “Serving of Notice and Non-refoulement claim form”, “leaflet of DLS” and “Notice of Decision Making of Subsequent Claim” were served.
Applicant was detained under s.37ZK of IO pending final determination of his torture claim. A Notice of Detention was served on him.
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18.06.2014
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Case Progress for Detention Review was compiled.
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19.06.2014
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Completed NCF was received via DLS.
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23.06.2014
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RAS made request for urgent provision of interpreter for screening interview.
Review of detention was conducted. It was decided that detention under s.37ZK should be continued.
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24.06.2014
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RAS was informed that interpreter would be available on 4.7.2014 for screening interview. Interview room was reserved.
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25.06.2014
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ImmD informed DLS that interview with the Applicant on 4.7.2014 was arranged.
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26.06.2014
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DLS informed that duty lawyer would not be available on 4.7.2014. Rescheduling of screening interview was required.
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27.06.2014
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Screening interview was postponed to 14.07.2014. Urgent arrangement of interpreter and interview room were arranged. DLS was informed accordingly.
Notice of Review of detention served on the Applicant but he refused to sign.
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30.06.2014
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Applicant requested for bail out.
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11.07.2014
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RAS replied to Applicant’s request for bail that his detention would be reviewed regularly.
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14.07.2014
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Applicant claimed that he was unable to proceed with the screening interview since he was allegedly having severe stomachache and he was not able to sleep for the whole night. Applicant sought medical consultation at CIC.
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15.07.2014
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The screening interview was postponed to 23.07.2014.
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17.07.2014
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Case Progress for Detention Review was compiled.
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23.07.2014
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Applicant was interviewed at CIC but he claimed again that he was unfit to proceed with the interview due to stomachache.
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25.07.2014
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Case Summary was compiled.
Review of detention was conducted. It was decided that detention under s.37ZK of IO should be continued.
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31.07.2014
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Medical record of Applicant’s medical consultation at CIC on 14.07.2014 was received from DLS. According to the medical record of 14 July 2014, the doctor remarked that “This patient claimed to feel unwell during interview. After careful assessment, his symptoms are minimal. He is in satisfactory physical & mental state and is fit for interview”.
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06.08.2014
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Notice of Review of detention served on the Applicant but he refused to sign.
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08.08.2014
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Medical record of Applicant’s medical consultation at CIC on 23.07.2014 was received from DLS. According to the medical record of 23.07.2014, the doctor remarked that “This patient complained of feeling unwell during interview. After careful assessment, he is in satisfactory physical & mental condition. He is fit for interview”.
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18.08.2014
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A letter was sent to DLS requesting Applicant to provide written answers to a List of Questions on or before 01.09.2014.
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22.08.2014
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Case Summary was compiled.
Review of detention conducted. It was decided that detention under s.37ZK of IO should be continued.
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28.08.2014
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By letter of even date, DLS requested for extension of 30 days from 27.08.2014 to return the Applicant’s written answers to the List of Questions.
Notice of Review of detention served on the Applicant but he refused to sign.
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01.09.2014
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DLS was replied inter alia that the duty lawyer’s grounds for seeking 30 days extension for submitting the written answers were noted. RAS opined that as Applicant was currently under detention, his case should be handled as soon as practicable and thus his written answers to the List of Questions should be submitted on or before 15.09.2014.
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08.09.2014
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Applicant provided written answers to the List of Questions. An interview was also requested.
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12.09.2014
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DLS was informed that an exceptional interview was scheduled on 07.10.2014.
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15.09.2014
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DLS informed by letter that the duty lawyer was not available on 7.10.2014 and proposed to further postpone the interview.
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22.09.2014
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Case Summary was compiled.
Review of detention conducted. It was decided that detention under s.37ZK of IO should be continued.
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30.09.2014
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Notice of Review of detention served on the Applicant.
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06.10.2014
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DLS was informed that as per their request of 15.9.2014, the interview was postponed to 17.10.2014.
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[1] Applied in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 (PC) and A (Torture Claimant) v Director of Immigration [2008] 4 HKLRD 752 (CA) at paragraph 27.
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