MOHAMMAD ESHAN v. DIRECTOR OF IMMIGRATION

HCAL 1047/2022

[2022] HKCFI 3234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1047 OF 2022

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D E C I S I O N

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A.  Introduction

1.  The Applicant is currently held in immigration detention, pending his removal from Hong Kong pursuant to a Removal Order made on 19 June 2014. He is, therefore, held pursuant to section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”). The present period of detention commenced on 8 June 2022, and to date has lasted 134 days, about 4½ months.

2.  On 5 October 2022, the Applicant applied for writ of habeas corpus on grounds set out in his supporting affirmation.

3.  On 6 October 2022, I gave directions for the matter to come to today’s hearing. Those directions included for the Respondent (“Director”) to provide an initial response to the application, and for the Applicant to have leave to file a reply to that initial response. The initial response was filed, but the Applicant has not filed any reply.

4.  At the hearing, the Applicant has appeared in person (with the assistance of a Hindi interpreter).

5.  The Director was represented at the hearing today by Mr Jack Wong, Government Counsel, who placed reliance on the initial response/skeleton argument also signed by him.

6.  This is my Decision.

B.  Background Facts

B.1  Background of the Applicant

7.  The Applicant is an Indian national. He arrived in Hong Kong on 18 April 2014 on the strength of his Indian passport and was permitted to stay until 25 April 2014. But he did not leave, and he has been overstaying in Hong Kong since 26 April 2014.

8.  As stated, he is subject to a Removal Order issued on 19 June 2014. The Removal Order was issued under section 19(1)(b) of the Ordinance. It has remained in force throughout.

9.  The power to detain pending removal under such a removal order is to be found in section 32(3A) of the Ordinance, which provides:

A person in respect of whom a removal order under section 19(1)(b) is in force may be detained under the authority of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration pending his removal from Hong Kong under section 25.

10.  The Removal Order has not been executed and his stay in Hong Kong has been tolerated in the past 8 years largely because of the non-refoulement claim (“NRC”) and related proceedings raised by him. I will come to NRC proceedings in more detail below.

11.  During his stay in Hong Kong, he formed a relationship with a Ms Villanueva Glyza Mae Barrera, and with her the Applicant fathered a boy born in May 2020. Both Ms Villanueva and the boy are non-refoulement claimants and subjects of removal orders made on 9 January 2020 and 9 November 2020 respectively. I am informed that their removal is currently put on hold pending the result of their judicial review proceedings.

12.  Apparently, no marriage is registered between the Applicant and Ms Villanueva in Hong Kong. In the Applicant’s supporting affirmation for this habeas corpus application, he also refers to an ex-wife in India.

B.2  NCR and JR

13.  The Applicant lodged a NRC on 28 May 2014. His claim was rejected by the Director and then the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) in 2016 and 2017.

14.  In 2018, the Applicant applied to the Court of First Instance (“CFI”) for leave to judicially review the administrative decisions rejecting his NRC. He lost all the way up to the Court of Final Appeal (“CFA”) which dismissed his application for leave to appeal on 5 August 2021.

15.  Before the CFA’s ultimate refusal, the Applicant had already requested to file a subsequent claim (“SubC”) on 15 April 2021. That request was rejected by the Director on 15 September 2021.

16.  The Applicant then came back to the CFI seeking leave to challenge the Director’s refusal of the SubC by way of judicial review, which was rejected by the CFI on 20 January 2022. At the same time, the CFI also imposed a restricted proceedings order (“RPO”) prohibiting him from instituting or continuing with any legal proceedings related to his NRC without first obtaining leave from the CFI to do so.

17.  Following the imposition of the RPO, the Applicant twice applied to the CFI for leave to institute proceedings. Both applications were rejected.

18.  As it now stands, there are no extant NRC related legal proceedings. The only outstanding legal action is this habeas corpus application.

B.3  Periods of detention and past absconding record

19.  Prior to the present period of detention, there were two previous periods of detention. Both periods were short: the first from 25 May 2014 to 27 June 2014; the second period from 30 August 2019 to 11 September 2019. Other than those two periods, he was otherwise released on recognizance during his 8 years’ stay in Hong Kong, before the present detention.

20.  The present detention commenced on 8 June 2022, following his arrest by immigration officers who were tasked with locating him because he had failed to report recognizance – absconded – since 28 April 2022.

21.  That was the fourth time the Applicant absconded. He absconded the first time on 28 April 2017 and only resurfaced about 9 months later. He absconded the second time on 9 November 2018, and resurfaced about 5 months later. He absconded the third time from 13 October 2021, and resurfaced about 2 months later.

22.  The reasons given to the Immigration Department (“ImmD”) for the four absconding periods were, respectively, that he had a memory loss under medication, he could not find his recognizance form, the reporting day was a holiday and there was typhoon, and that he had been infected with Covid-19.

23.  I bear in mind that on the three prior occasions that he absconded, he was nevertheless released on recognizance. But, I do not think that necessarily means that the ImmD felt the reasons given by him for absconding were valid. In any event, the absconding was then whilst there were extant NRC-related proceedings, which created a legal impediment to his removal.

B.4  Reviews of detention

24.  Since the present detention commenced on 8 June 2022, the Applicant’s detention has been reviewed twice, on 7 September 2022 and on 13 October 2022. Continued detention was recommended on both occasions.

25.  The Notices of review of detention were served on and interpreted to the Applicant on 19 September and 14 October 2022. Both identify the grounds for continued detention are: (a) the Applicant’s removal is going to be possible within a reasonable time, (b) he may abscond, (c) he does not have close connection or fixed abode in Hong Kong, and (d) there are no other circumstances in favour of his release.

26.  On the lack of close connection or fixed abode in Hong Kong, it was further remarked that Ms Villanueva and their son are both subjects of removal orders. It was also noted that he had sought to be released on recognizance, via his legal representative, on 8 June 2022, 9 June 2022 and 26 June 2022 on the basis of family reunion. The Director took the view that that factor has been taken into account but it does not outweigh the factors favouring continued detention.

B.5  Steps towards Removal

27.  By the time the present detention commenced on 8 June 2022, there was no extant NRC related proceeding, administrative or judicial.

28.  The major obstacle to removal has been the Applicant’s expired Indian passport, which needed replacement. From 31 May 2022 to 12 October 2022, the ImmD had contacted the Consulate General of India (“Indian Consulate”) 6 times asking for the issuance of a replacement travel document for the Applicant.

29.  However, the issuance of such a document would require the Applicant’s cooperation in completing the application formalities, e.g. submitting the application documents, physically attending the office of the Indian Consulate, etc. The Applicant has been unwilling to cooperate so far but the Director is actively exploring with the consulate to see if a replacement travel document could be issued by alternative means.

C.  Applicable Principles

30.  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.

31.  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.

D.  Merits of Application

32.  In the supporting affirmation, the Applicant refers to [sic]:

Affirmation for leave to apply for writ of Habeas Corpus agains the all my Claims Decisions made by Immigration Director Seeking for Bail.

33.  Exhibited to the affirmation is a handwritten letter addressing this court, and a copy of Ms Villanueva’s recognizance form, his son’s recognizance form, the son’s birth certificate, and a document showing Ms Villanueva’s conversion to Islam.

34.  The content of the letter could be summarized as follows:

(1)  It will be very dangerous for him to return to India. His enemy is a group of powerful gangsters who can kill him – which he says is not a feeling but a reality. There is no-one there who can protect him.

(2)  His ‘ex-wife’ does not want to divorce him, and has begun a case against him. She has also threatened him and his family, and has demanded 1,000,000 in Indian currency which he could not afford.

(3)  He lost his brother through Covid, and his parents have also passed away.

(4)  His family in Hong Kong including his son is all he has. If they return to India, they will also be killed by the Applicant’s enemy.

(5)  He asks for some time so that he can settle his family elsewhere.

(6)  He has committed no offences in Hong Kong.

(7)  He has suffered a lot in detention and he wishes to live a normal life in Hong Kong.

(8)  He could provide more evidence for his case but it is difficult for him to do so while detained.

35.  After the commencement of this habeas corpus application, the Applicant has sent a letter dated 12 October 2022 which was received by the Department of Justice on 14 October 2022. I am also provided with a copy of the letter. The Applicant reiterated that it is dangerous for him to return to India. He also said no one is there to take care his wife (i.e. Ms Villanueva) and their 28-month-old son.

36.  At the hearing, he further submitted, in summary:

(1)  At the time of his detention, his wife was pregnant, but she has since miscarried.

(2)  He is afraid that he will lose his other son, because the son is sick, and he cannot be there to assist looking after him.

(3)  His son is suffering stress and problems because of his detention. Even when the son visits him in detention, he presses the button hoping that the glass between them will open to allow him to come close.

(4)  He will not abscond if released on recognizance, as his family is the most important thing, and he will be living in Hong Kong with his family.

(5)  On previous occasions when he absconded, he always provided valid reasons for doing so. The ImmD accepted those reasons, and allowed him to be released again on recognizance each time.

(6)  He had failed to report recognizance at the time he was recently arrested because he had tested positive twice for Covid.

(7)  If required, he could provide a guarantor being his friend with a Hong Kong identity card.

(8)  He emphasised that he had been in Hong Kong for eight years without committing any crime, and would never commit any crime; he apologised if he had caused inconvenience; and emphasised his fear of the stresses family is under due to his continued detention.

37.  The bulk of the Applicant’s earlier submissions apparently go to his NRC claim – namely, why he says he should not be returned to India. These submissions are misplaced. It bears repetition that a habeas corpus application is not a non-refoulement claimant’s last-ditch attempt to re-argue his NRC. The central question is whether it is lawful for the detention to continue pending, that is until, removal. This is not the avenue to resolve whether the detainee should be eventually removed from Hong Kong.

38.  I will bear in mind the other points, mostly emphasised in his submissions this morning: that he has no criminal record; that there is no one to take care of Ms Villanueva and the son while he is detained; that the son is unwell and stressed as a result of being separated from his father; that he promises he will not abscond, and could provide a guarantor. I will refer to those points in my analysis below if necessary.

39.  The Removal Order issued against the Applicant is valid and extant. The detention of the Applicant under section 32(3A) of the Ordinance clearly provides prima facie lawful authority to detain the Applicant pending removal. Therefore, the question raised by this application is whether the detention has become unlawful, as a result of the period of detention becoming unreasonable in all the circumstances – when looking at the Hardial Singh principles outlined above.

40.  Mr Wong submits that the detention of the Applicant has been reasonable at each stage, and throughout the entire 134 days. Having carefully considered the circumstances, I agree.

41.  First, the Director does intend to deport the Applicant and is only using the power to detain for that purpose. The Director intends to remove the Applicant as soon as possible. Throughout the period of the present detention, there has been no legal impediment to the Applicant’s removal. The only obstacle standing in the way of removal is the Applicant’s expired passport which needed replacement and the Director has been in active liaison with the Indian Consulate to obtain a replacement travel document. Such a document could be obtained earlier if the Applicant were to cooperate. HS1 is satisfied.

42.  Secondly, the Director has acted with reasonable diligence and expedition to effect removal, evident by the efforts in obtaining a replacement travel document. HS4 is satisfied.

43.  Thirdly, there has been no NCR or related judicial review proceedings at any point in the present period of detention. All the NCR or SubC related proceedings had already come to a halt by 20 January 2022 when the Court imposed the RPO. In the circumstances, and where efforts were made to obtain a replacement travel document, the Director was correctly of the view that the Applicant could likely be removed within a reasonable period of time. HS3 is satisfied.

44.  I agree with the Director that there is a reasonably high risk of absconding given that he had absconded on four previous occasions. On two of the occasions, he did not resurface until 9 months and 5 months later respectively. Absconding risks frustrating the purpose of detention – namely, repatriation. I have already commented that I do not think the fact that he was released on recognizance after previous periods when he absconded means that the reasons given for absconding were treated as valid. In my own view, the reasons he gave for absconding are not very convincing, and I would not regard them as particularly valid.

45.  As it now stands, the only outstanding matter is a replacement travel document the processing time of which could be shortened if the Applicant were to be cooperative. In other words, it is the Applicant who has been prolonging his own detention. Had he been willing and cooperative, he could be released from detention sooner, albeit in India upon repatriation.

46.  As to the family considerations, I note and fully understand the Applicant’s wish to reunite with his family and I accept that there are inherent difficulties in leaving Ms Villanueva to raise the son alone. These are matters worthy of proper weight. However, I also recognize that the family separation is also, partly, the result of the Applicant’s deliberate action in delaying removal from Hong Kong rather than, say, as he suggested in the letter, to settle the family elsewhere as soon as possible. As Mr Wong submits, the Applicant and his family are all non-refoulement claimants subject to valid removal orders, who are all expected to be removed from Hong Kong in any event.

47.  Balancing matters against the period of detention – 134 days – I have come the view that the Applicant has been detained, and will likely be further detained, only for a period that is reasonable in all the circumstances. HS2 is satisfied.

E.  Result

48.  The Applicant continues to be lawfully detained. The Applicant’s application for writ of habeas corpus is, therefore, dismissed.

49.  I make no order as to costs.