SANYANG YAHYA v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 177/2024

[2024] HKCFI 610

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 177 OF 2024

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J U D G M E N T

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A.  Application

1.  By an ex parte application filed on 18 January 2024, the Applicant applies for a writ of habeas corpus, pursuant to Order 54 rule 1 of the Rules of the High Court (Cap 4A). The Applicant thereby seeks release from the custody of the Correctional Services Department.

B.  Background of Applicant

2.  The Applicant is a Gambian national born on 7 March 1985 who arrived in Hong Kong on 15 July 2014 on the strength of his Gambian passport. He was permitted to remain as a visitor until 13 October 2014. On 22 October 2014 the Applicant surrendered to the Immigration Department (the “Department”) and was released on recognizance on the same day.

3.  On 20 November 2014, the Applicant indicated his intention to lodge a non-refoulement claim (the “NRC”).

4.  On 22 April 2016, a removal order was made against the Applicant (the ‘Removal Order”).

5.  The Applicant’s passport expired in June 2019.

6.  The Applicant failed to report recognizance on 24 January 2022 and was re-arrested by the police on 25 August 2022 as a wanted person for his abscondence. The Applicant was referred to the Department on 26 August 2022 and was detained from that day onwards.

7.  On 17 February 2023 a deportation order was made against the Applicant (the “Deportation Order”).

8.  At the time of the hearing, the Applicant has been detained for 550 days.

C.  NRC related proceedings

9.  The Director of Immigration (the “Director”) rejected the Applicant’s NRC on 3 April 2017 by a notice of decision (the “Director’s Decision”). The Applicant’s application for the late filing of the Notice of Appeal was refused by the Torture Claims Appeal Board (the “TCAB Decision”).

10.  The Applicant applied to the Court of First Instance (the “CFI”) for leave to apply for judicial review against the TCAB Decision (the “JR Application”) in HCAL 1173/2018. Leave was granted by the CFI and the TCAB Decision was remitted to the Torture Claims Appeal Board (the “TCAB) on 16 December 2021.

11.  A hearing was fixed by the TCAB for 14 July 2022 but the Applicant did not appear.

12.  The Applicant was detained on 26 August 2022.

13.  Another hearing was fixed by TCAB for 9 November 2022. At the hearing, the Applicant claimed that he had documentary evidence in support of his NRC.

14.  The TCAB dismissed the Applicant’s appeal on 23 November 2022 (the “2^nd TCAB Decision”).

15.  On 9 December 2022, the Applicant requested to close his NRC and to go back to Gambia.

16.  After more than a year of the handing down of the 2^nd TCAB Decision, and on the same day of the filing of this Habeas Corpus application, the Applicant filed an application for leave to commence judicial review against the 2^nd TCAB Decision under HCAL 180/2024 (the “2^nd JR Application”) on 18 January 2024.

17.  The Director requested the CFI to accord priority to the 2^nd JR Application on 14 February 2024.

18.  According to the updated removal policy of the Department since 7 December 2022, once a NRC claimant's subsequent legal proceedings have reached the stage of having been rejected by the Court of First Instance, the existence of further proceedings will not normally be considered by the authority as an impediment to removal.

19.  Although there was no legal impediment at the commencement of the detention of the Applicant on 26 August 2022, a legal impediment was created on 18 January 2024 due to the lodging of the 2^nd JR Application.

D.  Criminal Record & Sentencing and Abscondence Record

20.  The Applicant’s criminal and sentencing record is as follows:

Date of Conviction	Offence	Period of Sentence
15 February 2016	Possession of dangerous drug	HK$2,000
19 July 2017	Trafficking in dangerous drug	12.5 months’ imprisonment
16 August 2017	Trafficking in dangerous drug	27 months’ imprisonment (9 months to be served concurrently with his prior sentence)
25 May 2022	Possession of dangerous drug	14 days imprisonment suspended for 12 months

21.  The Applicant’s record of abscondence is as follows:

Date of Abscondence	Period of Abscondence	Explanation for Abscondence
11 August 2021	Until surrender on 21 September 2021	Back Pain
24 January 2022	Until arrest by the police on 25 August 2022	n/a

E.  Steps towards Removal

22.  The Applicant indicated that he was unwilling to return to Gambia shortly after his detention on 16, 20 September 2022, 19 October 2022, 4, 17 November 2022.

23.  On 2 December 2022 and 16 December 2022, the Director had sought assistance from the Embassy of the Republic of the Gambia in Beijing (the “Gambia Embassy”) for the issue of a replacement travel document and for confirmation of the Applicant’s identity.

24.  On 20 December 2022, the Applicant had a change in his attitude and stated that he wished to go back to Gambia. The willingness to return was repeated on 3 March 2023.

25.  On 29 December 2022, the Gambia Embassy confirmed that the Applicant was a Gambian national, and an emergency travel certificate with date of departure from 28 March 2023 to 30 March 2023 was issued to the Applicant. A ticket for repatriation flight on 28 March 2023 was secured on 17 March 2023.

26.  The Applicant then changed his mind and indicated his unwillingness to return to Gambia on 17 and 21 March 2023. When the Applicant was escorted to the airport on 28 March 2023 for removal, the Applicant became emotional upon arrival at the airport. In view of the resistance, the airline staff refused to issue a boarding pass. The removal operation was thus called off.

27.  The Applicant then refused to co-operate with removal formalities on 10 May 2023. On the same day, the Director sought assistance from the Gambia Embassy for issue of another emergency travel document. This was repeated on 23 June 2023 due to the Applicant’s persistent refusal to co-operate.

28.  The Applicant maintained his unwillingness to co-operate with re-entry formalities on 7 June 2023, 31 July 2023, 2 August 2023, 6, 7 September 2023, 13 October 2023 and 1, 22, 23 November 2023, 8, 26 January 2024.

29.  The Gambia Embassy has indicated in August and November 2023 and January 2024 that a travel document cannot be issued in view of the Applicant’s refusal to co-operate. An emergency travel document could be issued within 1 month upon completion of re-entry formalities including the completion of a re-entry application form with a recent photo, attending the phone interview, confirmation of removal date and itinerary.

30.  Upon the filing of the 2^nd JR Application, the Director had actively liaised with the CFI to request for priority being accorded to the case. Upon a request by the CFI, the Director’s Decision was provided by letter dated 23 February 2024.

F.  Applicable Principles

31.  In the Court of Appeal’s Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security and Another [2022] HKCA 781, the principles to be applied in an application for habeas corpus were set out in summary in §164.

32.  In considering the present application, I have adopted the said principles and have borne in mind that (1) the burden is on the Director to justify the continued lawfulness of the detention, and (2) the weight to be given to individual factors in the balancing exercise may, depending on the circumstances of the particular case, vary considerably as the period of detention lengthens.

G.  The Applicant’s Submissions

33.  The Applicant has set out his grounds for application in his affirmation filed on 18 January 2024. In summary, they are as follows:

(1)  The Applicant claims there are still obstacles to his removal and deportation cannot be effected within a reasonable time.

(2)  The Applicant has been detained for more than 15 months and cannot be considered as reasonable.

(3)  The Director has failed to give any weight to the effect of detention on the Applicant.

(4)  The Director has failed to consider recognizance as an alternative.

(5)  He is being forced to inhale second hand smoke in detention.

(6)  The meals served in detention lack nutritional value.

(7)  The Applicant suffers from the feeling of sadness due to the prolonged detention.

34.  At the oral hearing, the Applicant submitted further written submissions which can be summarised as follows:

(1)  He refused to go back to Gambia on 28 March 2023 because he had a panic attack at the airport.

(2)  He filed for his 2^nd JR Application late because of a lack of funds.

(3)  He is refusing to co-operate with the removal formalities as he fears for his life if he returns to Gambia.

(4)  He has long nightmares.

35.  I shall bear these points in mind as appropriate in my analysis below.

H.  Lawful Authority for Detention?

36.  The Removal Order issued on 22 April 2016 and the Deportation Order issued on 17 February 2023 remain valid.

37.  The Applicant was detained from 26 August 2022 to 23 November 2022 under section 37ZK of the Immigration Ordinance (Cap 115) (the “Ordinance”) pending final determination of his torture claim.

38.  From 23 November 2022 to 30 January 2023, the Applicant was detained under section 32(3A) of the Ordinance, pending his removal pursuant to the Removal Order.

39.  From 30 January 2023 to 12 February 2023, the Applicant was detained under section 29(1) of the Ordinance, for enquiry as to whether he ought to be deported.

40.  From 13 February 2023 to 17 February 2023, the Applicant was detained under section 29(2) of the Ordinance, for inquiry as to whether he ought to be deported.

41.  From 17 February 2023 to 26 February 2024, under section 32(3) of the Ordinance, pending removal pursuant to the Deportation Order.

42.  Thus, there was and remains clear prima facie lawful authority for the detention.

43.  Therefore, the question arises as to whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

I.  Whether Detention has become unlawful

44.  The assessment of whether an originally lawful detention has ceased to be lawful due to its continuation for an unreasonable period will be made in line with the “Hardial Singh principles”:

(1)  The Secretary/Director must intend to deport the person and can only use the power to detain for that purpose (“HS1”);

(2)  The deportee may only be detained for a period that is reasonable in all the circumstances (“HS2”);

(3)  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 (“HS3”);

(4)  The Secretary/Director should act with reasonable diligence and expedition to effect removal (“HS4”).

45.  The burden of demonstrating the detention (and the continuation of it) is lawful rests on the respondent to the application for habeas corpus.

HS1

46.  I am satisfied that the Director has detained the Applicant for the sole purpose of removal or deportation throughout the detention period. HS1 is satisfied.

HS2 & HS3

47.  The starting point is the length of the detention – 550 days – against which all the other factors must be weighed and balanced.

48.  For the following reasons, I am satisfied that HS2 and HS3 are satisfied:

(1)  On the day the Applicant’s detention commenced (26 August 2022), there was no legal impediment to his removal, as he had not yet filed the 2^nd JR Application, which was only filed on 18 January 2024. The legal impediment to the Applicant’s removal was only created on 18 January 2024.

(2)  Except for the brief period between December 2022 to March 2023, the Applicant had been refusing to co-operate with removal formalities from March 2023 to the date of the hearing.

(3)  In Johnson Benjamin v Director of Immigration & Secretary for Security[1], the Court of Appeal held that:

“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.”

(4)  The period of detention that the Applicant has prolonged by his refusal to co-operate will thus not be counted as unreasonable when determining whether an originally lawful detention has become unlawful. I am of the view that such period in the present case would be the majority of the period of detention as the Applicant has since the commencement of the detention been acting unreasonably (except between December 2022 to March 2023).

(5)  If he had co-operated with removal operation, the Applicant would have already been released and returned to Gambia on 28 March 2023.

(6)  Contrary to the Applicant’s contention that he had only one criminal record in 2016, the Applicant has been convicted multiple times for serious offences involving dangerous drugs, including drug trafficking, whilst on recognizance. The serious nature of such offences can be seen from the sentence ranging between 12.5 – 27 months of imprisonment. I consider the risk of re-offending to be substantial.

(7)  The Applicant has no local family connection. He has also absconded twice and was only discovered upon the re-arrest by the police. Together with his strong unwillingness to be repatriated back to Gambia, I consider there to be a high risk of abscondence. The risk of abscondence is of critical importance in assessing lawfulness of the detention. If the Applicant absconds again, it would defeat the primary purpose for which the power to detain has been conferred and for which the detention order was made.

(8)  The Applicant’s 2^nd JR Application was only filed on 18 January 2024, more than a year of the handing down of the 2^nd TCAB Decision. The failure to promptly lodge his 2^nd JR Application indicates a lack of conviction in the pursuit of his NRC. I find the delayed 2^nd JR Application to be a desperate attempt on his part to create a legal impediment. In these circumstances, I am of the view that the Applicant should not be allowed to take advantage of and rely on the last minute self-created legal impediment in support of the present application.

(9)  I reject the Applicant’s claim that he did not file the 2^nd JR Application earlier due to financial difficulties, as there was no application for exemption of filing fee from the Applicant. The fact that he had filed the 2^nd JR Application and the habeas corpus application (with 2 sets of filing fee) on the same day indicates that he was not as short of funds as he portrayed.

(10)  Since the filing of the 2^nd JR Application, the Director had actively liaised with the CFI to request for priority to be accorded to the case. The Judge in charge of the 2^nd JR Application had on 22 February 2024 requested for the Director’s Decision. There is basis to believe that the 2^nd JR Application is being actively handled and the remaining legal impediment will be disposed of within a reasonable time in future.

(11)  It has been indicated that it would take about 1 month for the Gambia Embassy in Beijing to process the application for a travel document, upon completion of re-entry formalities. It is thus foreseeable that the Applicant will be released and removed within a reasonable time, if he were to co-operate.

(12)  I accept Ms Lam’s submission that the detainees in Tai Tam Gap Correctional Institute (“TGCI”) could only smoke at smoking booths equipped with a ventilation system installed in the dayrooms, dormitories and other designed places and at specific times. Further, the dietary scales and quantity of meals provided in TGCI are designed by accredited dietitians and supported by the Department of Health. Regarding the Applicant’s claimed health condition, there is no reason to believe that the Applicant would not receive proper medical treatment and health care while detained if required as medical services are provided to the detainees by the medical officers of TGCI.

(13)  Overall, weighing the period of detention – 550 days (but the majority of which will not be counted as unreasonable) – against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

49.  For the steps as set out in paragraphs 23 – 30 hereinabove, I am satisfied that HS4 is satisfied. for the following reasons:

(1)  The Director has proactively arranged for the deportation of the Applicant.

(2)  The Director had tried to seek for alternative arrangements of removal with the Gambia Embassy upon the unwillingness of the Applicant to comply with re-entry formalities.

50.  Based on the above, I am of the view that the period of detention to date has remained lawful at all times and will remain lawful for the foreseeable future.

J.  Result

51.  For these reasons, I dismiss the Applicant’s application for writ of habeas corpus with no order as to costs.