RE BHARDWAJ YOGESH

HCAL15/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 15 OF 2012

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JUDGMENT

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1.  This is an ex parte application[1] by Mr Bhardwaj for the issue of a writ of habeas corpus.

2.  According to the Applicant, he came to Hong Kong in October 2010 but was refused lawful entry into Hong Kong.  He then had been detained in the detention centre for some 60-odd days. 

3.  With the information presented to court in his affirmation and what he said to court today, apparently he has since then lodged an application for a torture claim as well as an application with the High Commissioner for Refugees (UNHCR) for asylum status.

4.  He told this court that his torture claim has been dismissed but his application for UNHCR asylum status is still active and being processed.  He has, however, provided no information in relation to the application in his affirmation except a letter dated 31 October 2011 from the UNHCR acknowledging the receipt of his application.

5.  According to the Applicant, he had since been released on one or two occasions on recognisance but he has recently been detained again by the Immigration Department up till now for over 70 days. 

6.  He now asks this court to issue a writ of habeas corpus to release him.

7.  As said by Cheung J in the often cited case of ReOgunade (HCAL20/2005, 8 February 2005) at para 13, a habeas corpus application is an extraordinary remedy.  The fundamental question that should be determined by the court in considering whether to issue a writ of habeas corpus is whether it can be shown that the detention is unlawful: Fidelis AQhuwaraezeama Emem v Superintendent of Victoria Prison [1998] 2 HKLRD 488 at 453C-D and 455A-B.

8.  After hearing the Applicant what he has told the court today, together with what he has set out in his affirmation, he has raised the following to support the present application: his application for UNHCR asylum status is still active, he has been applying to the case officer many times and has not received any reply favourably in relation to his application for recognisance or bail, and also the fact that he has been suffering from some breathing problems and some medical discomfort where he had been in fact taken to the Yaumatei Clinic for treatment, although he said the treatment was not appropriate because he believed the medicine prescribed to him was not the right one.  

9.  However, the court is not satisfied that Mr Bhardwaj has shown that any of the above grounds supports that his present detention is unlawful.

10.  It must be emphasised that he landed in Hong Kong without any legal and lawful permission, as he openly accepted that when he first arrived in Hong Kong he was refused entry.  The mere fact that there was still a pending application for asylum status with the UNHCR is not a reason to suggest that his detention is unlawful in any way.

11.  On this basis, I refuse the application.