AMMAR ABDALMOEEN HUSSEIN IBRAHIM v. SECRETARY FOR SECURITY AND ANOTHER

HCAL 129/2024

[2024] HKCFI 682

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 129 OF 2024

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REASONS FOR JUDGMENT

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A.  Application

1.  By an ex parte application filed on 11 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). This is the Applicant’s 2^nd application for habeas corpus (the “2^nd HC Application”). The 1^st application was dismissed on 9 November 2023 under HCAL 1680/2023 (the “1^st HC Application”). The Applicant thereby seeks release from the custody of the Correctional Services Department.

2.  At the end of the hearing I dismissed the 2^nd HC Application, with reasons to be handed down. These are my reasons.

B.  Background of Applicant, Criminal Record, Abscondence Record

3.  I gratefully adopt the background of the Applicant, record of criminal convictions, record of abscondence and the history of his non-refoulement proceedings as set out by DHCJ Jonathan Wong in his Decision dated 9 November 2023 for the 1^st HC Application.

4.  At the time the 1^st HC Application was dismissed, he had been detained for 212 days. From 10 November 2023 to the date of the hearing of the 2^nd HC Application, the Applicant had been detained for a further 116 days. At the time of the present hearing, the Applicant has been detained for a total of 328 days.

C.  Non-refoulement Claim Related Proceedings

HCAL 871/2019

5.  On 29 March 2019, the Applicant applied for leave to apply for judicial review against the Torture Claim Appeal Board’s decision of 28 February 2019 (“JR Leave Application”).

6.  On 31 January 2023, the Applicant’s JR Leave Application was refused by DHCJ K.W. Lung.

7.  On 16 June 2023, the Applicant applied to the Court of First Instance (“CFI”) for extension of time to appeal against the CFI’s decision of 31 January 2023 out of time, which was rejected by the CFI on 1 August 2023.

CAMP 298/2023

8.  On 29 August 2023, the Applicant filed a summons with the Court of Appeal for extension of time to appeal against the CFI’s decision of 1 August 2023. According to the available information, no hearing has been fixed and the judgment is still pending. However, according to the updated removal policy of the Immigration Department since 7 December 2022, once a non-refoulement claimant's subsequent legal proceedings have reached the stage of having been rejected by the CFI, the existence of further proceedings will not normally be considered by the authority as an impediment to removal.

Subsequent Claim

9.  After the 1^st HC Application was dismissed, on 11 December 2023, the Immigration Department received the Applicant’s written submissions dated 6 December 2023 requesting to make a subsequent claim (“Subsequent Claim”), without any further details or supporting evidence attached. The Applicant’s request for legal assistance was refused by the Duty Lawyer Service on 22 January 2024.

10.  The Director of Immigration (the “Director”) refused the Subsequent Claim on 29 February 2024.

D.  Steps towards Removal

11.  As found by DHCJ Jonathan Wong, the Director had all along acted with diligence to remove the Applicant up to and including the hearing for the 1^st HC Application.

12.  The Applicant had altogether refused to co-operate in 4 removal operations where he refused to get onto the arranged flight: (1) 28 August 2018, (2) 22 March 2019, (3) 11 September 2023, and (4) 13 November 2023.

13.  With the removal operation that was scheduled 4 days after the dismissal of the Applicant’s 1^st HC Application on 13 November 2023, the Applicant had gone to the lengths of refusing to take water or food, leading to his admission to Queen Mary Hospital on 11 November 2023, thereby aborting the removal operation on 13 November 2023.

14.  After the refusal of the Subsequent Claim by the Director on 29 February 2024, another repatriation flight has been arranged for 6 March 2024, 2 days after the present hearing.

15.  The Jordan Consulate has confirmed that in view of the Applicant’s un-cooperative stance, he could return to Jordan on the strength of his expired passport. There is no further impediment to the Applicant’s removal.

E.  Applicable Principles

16.  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.

17.  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.

F.  The Applicant’s Submissions

18.  The Applicant has set out his grounds for application in his affirmation filed on 11 January 2024. In summary, they are as follows:

(1)  The Applicant has applied for the Subsequent Claim. He also has other legal proceedings to attempt. There are large number of outstanding applications which have not yet been determined.

(2)  His health is in poor condition. He suffered from chest problem and bacterial infection. Further, he suffered from depression, anxiety and post-traumatic stress disorder due to the prolonged detention.

(3)  He has serious problems in Jordan and his life is in danger. He also has problems with his ex-wife’s family.

(4)  The length of the detention has become unreasonable and there are insufficient risks to justify such lengthy detention.

(5)  The Director has failed to give proper consideration as to whether removal can be effected within a reasonable time. The Director did not attach any weight to the effects of the detention on the detainee and his family, and his disability.

(6)  The conditions of his detention are similar to a detention in a prison facility. For example, there were a lot of “razor wires” on high steel fences surrounding the facility, full body strip searches were conducted, detainees were handcuffed when they were taken to the hospital, CCTV cameras were installed in dormitory, bathrooms and dayrooms, etc.

(7)  He has served his sentence and is now fully rehabilitated.

(8)  He wants to be released to follow up with his case. He also misses his son, whom he cannot contact while he is detained.

(9)  He jumped police bail because he was hospitalised at that time.

19.  At the oral hearing, the Applicant made the following oral submissions in addition to the written submissions:

(1)  He had made complaints about the conduct of the officers in Tai Tam Gap Correctional Institution (“TGCI”), who had allegedly made negatively comments about his mother.

(2)  He is treated badly inside TGCI.

(3)  He cannot go back to Jordan. He would rather stay in TGCI for life than to be sent back to Jordan.

(4)  He requested to be sent to Korea where he has family.

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

G.  Lawful Authority for Detention?

21.  In the 1^st HC Application, DHCJ Jonathan Wong was satisfied that there was lawful authority for the Applicant’s detention from the commencement of detention to 9 November 2023.

22.  After the 1^st HC Application was dismissed on 9 November 2023, the Applicant continued to be detained under section 32(3) of the Ordinance from 10 November 2023 to 4 March 2024 pending his removal under the Deportation Order issued on 14 August 2018.

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

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

H. Whether Detention has become unlawful

25.  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”); and

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

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

HS1

27.  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

28.  The starting point is the length of the detention – about 328 days – against which all the other factors must be weighed and balanced.

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

(1)  There is no legal impediment to the Applicant’s removal.

(2)  After the dismissal of the 1^st HC Application, during the interviews conducted with the Applicant on 17 November 2023, 22 November 2023, 8 December 2023, 22 December 2023, 8 January 2024, and 7 February 2024, the Applicant has persistently shown unwillingness to return to his home country and/or refused to cooperate with the removal arrangements and/or to complete re-entry formalities.

(3)  Four previous repatriation operations (the latest one being 4 days after the dismissal of the Applicant’s 1^st HC Application on 13 November 2023) had been called off due to the Applicant’s refusal to co-operate in the past. With the repatriation operation that was originally scheduled for 13 November 2023, the Applicant had gone to the lengths of refusing to take water or food, leading to his admission to Queen Mary Hospital on 11 November 2023.

(4)  It is thus clear that the Applicant’s continual detention is caused by no one but himself.

(5)  A repatriation flight has once again been arranged for 6 March 2024, 2 days after today’s hearing, although the Applicant has made clear that he will not co-operate with that operation either. The Applicant had made clear that he would rather stay inside TGCI if he were to be sent back to Jordan.

(6)  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.”

(7)  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.

(8)  If he had co-operated with removal operations, the Applicant would have already been released and returned to Jordan in 2018.

(9)  The Applicant has been convicted of the offence of theft three times whilst on recognizance. The risk of re-offending is substantial as the Applicant would need to sustain himself financially whilst he is in Hong Kong. As he is not allowed to take up employment, it is likely that he would be forced to resort to theft again.

(10)  The Applicant’s local connection is weak. The Applicant’s girlfriend could not provide a permanent address for purposes of consideration of recognizance. She would only rent a boarding house for the Applicant as she lives with her employer. Given the Applicant’s clear and strong attitude that he is unwilling to be repatriated, the risk of absconding is high. 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.

(11)  Although I accept that the Applicant has medical conditions, there is no reason to believe that the Applicant would not receive proper medical treatment while detained if required. As proven historically, when the Applicant required medical attention or needed to be sent to the hospital, he was duly referred according to needs.

(12)  Regarding the complaints on the quality of the facilities and the way he is being treated where the Applicant is being detained, an investigation is already under way concerning the complaints. However, the Applicant can in fact leave if he is willing to be removed back to Jordan. It is contradictory for him to refuse repatriation and yet at the same time complain about the conditions of detention and that he is being detained.

(13)  The Applicant seems to be under the misconception that the 2^nd HC Application is another opportunity for him to run his torture claim. This was explained to him.

(14)  There is no basis nor authority to send the Applicant to Korea, where he is not a citizen.

(15)  In the circumstances, weighing the period of detention – around 328 days – against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

30.  I am satisfied that HS4 is satisfied as the Director had continued in his efforts with the removal of the Applicant throughout from 10 November 2023 to date.

31.  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.

I.  Result

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