BENADICT PATPANATHAN v. DIRECTOR OF IMMIGRATION

HCAL 162/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 162 OF 2012

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J U D G M E N T

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1.  The Applicant Benadict Patpanathan has filed an application for habeas corpus against detention by the Director of Immigration pending execution of a removal order.

The  facts

2.  The Applicant entered Hong Kong lawfully on 26 September 2005, he then overstayed upon expiry of visa.  On 26 May 2006, he was detained for inquiry pending deportation under section 26 of the Immigration Ordinance, Cap 115 (“ImO”).

3.  Within a short time during detention, he filed a torture claim and also a refugee claim to the UNHCR.  On 15 July 2006, the Applicant was released on his own recognizance.

4.  On 11 April 2012, a removal order under sections 19(1)(b) of the ImO was made against him principally on the basis that he had no right of abode in Hong Kong.  He appealed against the removal order and it was dismissed by the Immigration Tribunal.

5.  On 14 August 2012, the torture claim was dismissed by the Director of Immigration, and no petition against that decision had ever been filed.  On 8 October 2012 the release on recognizance was revoked and he had since been detained.  The detention was reviewed and continued by the Director of Immigration on 16 November 2012.

The Applicant’s grounds

6.  The ground against detention is that he still has a pending refugee claim to UNHCR. 

The relevant principles

7.  The test for the grant of habeas corpus is whether the detention is legal, to wit,whether the underling facts for the exercise of the powers existed, and the reasonableness of the decision or whether there has been failure to observe the rules natural justice are not relevant as they are matters within the realm of judicial review (see Fidelis AQhuwaraezeama Emen v Superintendent of Victoria Prison [1998] 2 HKLRD 488, 453C-D and 455A-B per Stock J (as he then was)). 

8.  The next question is whether the detention is rendered unlawful by reason that it has been for an unreasonably long time (see R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704 at 706D-F; and A (Torture Claim) v Director of Immigration [2008] 4 HKLRD 752).  The Court has to consider whether removal can take place within a reasonable time (see Adjei Robert v Director of Immigration HCAL 76/2012 (dated 19 July 2012) per Poon J). 

9.  The Court is not to interfere with the assessment of the Director of Immigration that there is no indication that the deportation/ removal cannot be effected a reasonable time so long as the Director is intent upon removing the Applicant at earliest possible moment and it is not apparent that removal within a reasonable time would be impossible. (see Ubamaka Edward Wilson v The Secretary for Security and Another [2011] HKLRD 359 and A (Torture Claimant) v Director of Immigration op cit. 

Discussion

10.  The Respondent had written to UNHCR, and the their last response on 27 November 2012 was that the refugee claim is being considered, and they requested the Director of Immigration to put the removal order on hold, which the Director will do.  The Director has asked UNHCR to expedite the matter, and asked for the likely time frame for the determination.  The UNHCR’s response was that they could not review the matter without the consent of the Applicant. The Director of Immigration had asked the Applicant to give consent, but it was withheld by him.

11.  In MD Babu v Director of Immigration HCAL 87/2012 (dated 26 July 2012) per Au J, it was held that to reopen a UNHCR claim per se was no grounds for the grant of habeas corpus.  In Mbogga Nasser v HKSAR and Director of Immigration HCAL 142/2012 (dated 9 November 2012), the applicant therein has made an application of habeas corpus against detention pending removal on the ground of UNHCR refugee claim and it was refused by Au J.  The nature and period of detention in that case is very similar to the present one.

12.  Hence, the application has no merit and it is dismissed.