ALLAH DITTA v. DIRECTOR OF IMMIGRATION

HCAL 311/2022

[2022] HKCFI 1505

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 311 OF 2022

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D E C I S I O N

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A. Introduction

1.  The Applicant is held in administrative immigration detention pending his deportation pursuant to a deportation order. This is his application for a writ of habeas corpus pursuant to RHC Order 54 rule 1.  It is not the first such application made by the Applicant.  A previous application has been made and refused.  An appeal from that refusal has also recently been dismissed.

2.  But time has now moved on, and this application has been made.  It falls to be determined now, by reference to matters as they are now, and applying the relevant weighing of factors as they are now.

3.  First amongst the factors is the period of time already spent in detention.  The current detention under section 32(3) of the Immigration Ordinance Cap 115 (“Ordinance”) commenced on 14 September 2020.  The period of detention is longer when one takes into account his previous detention during the various periods: (1) from 23 March 2020 to 25 March 2020, under section 32(3); (2) from 25 March 2020 to 28 May 2020, under section 37ZK; (3) from 28 May 2020 to 16 July 2020, under section 32(3); and (4) from 16 July 2020 to 14 September 2020, under section 37ZK.

4.  Therefore, it is important to record and recognize up front that the total period of detention from 23 March 2020 to the date of the hearing 18 July 2022 is about 28 months.

5.  The present application was dated 26 April 2022, issued on 6 May 2022, but was without the supporting documents the Applicant indicated he wished to produce.  As a result, directions were given for the filing of further documents, and for a response from the Director of Immigration (“Director”), so as to bring the matter to a hearing fixed for 18 July 2022.

6.  At the hearing, the Applicant appeared in person and the Director was represented by Mr Sunny Li, Senior Government Counsel and Mr Frenki Fung, Acting Senior Government Counsel.  At the end of the hearing, I reserved my decision, in part in anticipation of the two decisions of the Court of Appeal expected to be handed down a short time later, and since handed down (see below).

7.  This is my Decision.

B.      Applicable Principles

8.  In its recent 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.

9.  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.

10.  Though I refer to the summary, I do not lose sight of the underlying details and rationale.

C.      Relevant Facts

11.  In its recent Judgment dated 29 July 2022 [2022] HKCA 779, relating to the present Applicant’s appeal from the refusal of his earlier application for habeas corpus, the particular background circumstances of the Applicant were set out.  They can be adopted for the purposes of this case, with suitable changes, as follows.

12.  The Applicant is a Pakistani national born on 15 January 1992. His natural mother passed away in 1994.  His father, who was a Hong Kong permanent resident, married a widow in Pakistan in 1996.  At present, one of the Applicant’s natural sisters and three of his step-siblings are Hong Kong permanent residents.

13.  On 7 March 2008, the Applicant first entered Hong Kong for residence as a dependant of his father.  The Applicant’s limit of stay in Hong Kong was last extended until 17 February 2012.

14.  On 11 November 2011, the Applicant’s father passed away in Pakistan.  On 17 February 2012, the Applicant made an application for extension of stay.

15.  On 21 December 2012, the Applicant was arrested in connection with a robbery case. On 11 March 2013, the Applicant’s application made in February 2012 for an extension of stay was refused by the Director.

16.  On 11 June 2013, the Applicant was convicted in DCCC 268/2013 of the alternative offence of handling stolen goods, and on 11 July 2013 he was sentenced to two years’ imprisonment.  The Applicant has pointed to the fact that the Reasons for Sentence recorded that he had expressed remorse and admitted his wrongdoing, which arose from association with dubious friends, and that there was no use of weapon or violence.

17.  Between 17 April 2014 (the date of the Applicant’s release from prison) and 15 September 2014, the Applicant was detained under the Ordinance.  During this period:

(1)  A deportation order (“Deportation Order”) was made against the Applicant on 17 June 2014 under s 20(1)(a) of the Ordinance.

(2)  An emergency passport was issued on 26 June 2014 by the local Consulate General of Pakistan for the Applicant’s return to his home country.

(3)  By letters dated 16 June, 7 and 23 July and 11 September 2014, the Applicant signified an intention to make a non-refoulement claim (“NRC”).

(4)  On 3 September 2014, the Applicant’s repatriation to Pakistan was not successful by reason of his resistance.

18.  On 15 September 2014, the Applicant was released on recognizance.  The Applicant has said that fact was a recognition that the Director then realised he (the Applicant) was not a threat to society nor would likely abscond.

19.  One of the conditions of the recognizance was that during the period of his release, he should not take up any employment unlawfully.  The Recognizance Form No 8 dated 15 September 2014 also stated, inter alia, that “failure to observe [the] above may result in his detention and discontinuance of his release on recognizance”.

20.  On 1 June 2018, the Director decided to take no further action on the NRC in view of the fact that the Applicant could not be reached by the case officer handling his claim.

21.  On 30 April 2019, the Applicant was arrested while on recognizance.  In the short period on police bail until his guilty plea, he did not abscond.  On 25 May 2019, he pleaded guilty in STCC 2106/2019 to the offence of taking employment when a deportation order was in force against him, contrary to section 38AA of the Ordinance, and was sentenced to 15 months’ imprisonment.  The Applicant has emphasised that he pleaded guilty to this offence, which again did not involve violence.

22.  On 23 March 2020, the Applicant was discharged from prison.  A stated above, the Applicant was detained under various sections of the Ordinance pending his removal from Hong Kong under the Deportation Order.  I consider that the date of 23 March 2020 is the relevant date of the commencement of the period of continuous detention for present purposes.  (In passing, I note that the internal documents facilitating reviews by the Secretary tend to refer to detention since 23 March 2020, but internal documents facilitating reviews by the Director tend to refer to detention since 14 September 2020.)

23.  On 25 March 2020, the Applicant requested to pursue the NRC.  The Director therefore resumed processing of the NRC.  On 22 April 2020, a completed Non-refoulement Claim Form in respect of the NRC was received by the Director.  On 6 May 2020, a screening interview of the Applicant in respect of NRC was conducted.  On 14 May 2020, the Director rejected the NRC.  On 28 May 2020, the Director treated the NRC as having been finally determined under 37V of the Ordinance in view of the fact that no notice of appeal/petition was received by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”).

24.  It can be noted that the notices of detention dated 23 March 2020 and 25 March 2020 did not suggest that the Applicant was likely to pose a threat/security risk to the local community, and did not mention that he had convictions associated with crimes of a serious or violent nature.  The notice of detention dated 29 May 2020 did not state the view that the Applicant constituted a threat/security risk to the community.

25.  On 9 June 2020, the Board informed the Director that it had received the Applicant’s late filing of a notice of appeal/petition (“Petition”) on 8 June 2020.  On 2 July 2020, the Director sent a letter to the Board informing the latter of the Applicant’s detention and requesting that priority be accorded to the Applicant’s case.  On 13 July 2020, the Board accepted the late filing of the Petition, and decided to give priority to the Applicant’s case.

26.  The notice of detention dated 16 July 2020 did not state the view that the Applicant constituted a threat to the public order or security of Hong Kong, and did not conclude that he had convictions associated with crimes of a serious or violent nature.

27.  Between 29 June 2020 and 28 September 2020, the Applicant was apparently on a hunger strike.

28.  On 2 September 2020, the Board held an oral hearing of the Petition.  On 14 September 2020, the Board dismissed the Petition (“Board’s Decision”).  As already stated, from that date onwards, the Applicant has been detained under section 32(3) of the Ordinance pending his removal from Hong Kong under the Deportation Order.

29.  On 28 September 2020, the Applicant filed a Form 86 in HCAL 1948/2020 (“JR Application”) seeking leave to apply for judicial review of the Board’s Decision.

30.  On 26 March 2021, the Applicant made an application for a writ of habeas corpus in HCAL 437/2021.  It was supported by an affirmation which had attached to it a handwritten document setting out his arguments in support of the application.  The Applicant also made oral and written submissions in support of his application at the hearing on 7 April 2021.  The application was dismissed by Chow J’s Judgment [2021] HKCFI 935.

31.  On 5 July 2021, by CALL-1 [2021] HKCFI 1918, DHCJ Bruno Chan refused to grant leave to apply for judicial review in the JR Application, finding that none of the grounds put forward by the Applicant were reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director or the Board in their decisions, and that there was no reasonable prospect of success in his intended application.

32.  On 15 July 2021, the Applicant issued a summons essentially repeating the JR Application.  DHCJ Bruno Chan dealt with the summons on paper and directed on 5 October 2021 that it be struck out and dismissed, [2021] HKCFI 2922.

33.  On 20 January 2022, the Applicant issued another summons, in essence seeking leave to appeal against the 5 July 2021 decision refusing him leave to apply for judicial review in the JR Application. The summons was necessary because the application was some six months late after the expiry of the 14-day period on 19 July 2021.  The summons was heard on 9 February 2022, when the Applicant appeared in person. The summons was dismissed by DHCJ Bruno Chan’s Decision dated 23 February 2022, [2022] HKCFI 479.

34.  On 12 April 2022, the Applicant issued a summons in CAMP 93/2022, applying for leave to appeal out of time against the decision of DHCJ Bruno Chan dated 5 July 2021. Pursuant to the directions of the Registrar of Civil Appeals, the Applicant was supposed to have lodged his written submissions in support of the summons on or before 26 April 2022, but failed to do so.  The application was dealt with on the papers, and on 8 June 2022 the application was dismissed, [2022] HKCA 811.

35.  On 22 June 2022, the Applicant applied to the Court of Appeal (within CAMP 93/2022) seeking leave to appeal to the Court of Final Appeal (“CFA”) from the decision dated 8 June 2022. On 23 June 2022, directions were given on that application.  But on 11 July 2022, the Registrar of Civil Appeals gave further directions, following the Applicant’s request for an extension of time within which to file his written submissions.  Time was extended to 25 July 2022 on an unless basis.

36.  In the meantime, the validity of the Applicant’s emergency passport, which had been previously extended by the Pakistan Consulate until 30 April 2022, was on 13 June 2022 further extended until 12 July 2022.

D.      Reviews of Detention

37.  Until the time of the Applicant’s earlier habeas corpus application heard by Chow J, there were various reviews of detention in respect of the Applicant’s detention, made by the Director and/or Secretary for Security (“Secretary”).  In essence, it was decided on each occasion of review that the Applicant’s detention should continue on the grounds that (i) his removal was going to be possible within a reasonable time, (ii) he might constitute a threat/security risk to the community, (iii) he might abscond and/or re-offend, and (iv) there were no other circumstances in favour of his release.  The following factors were taken into account when reaching those decisions:

(1)  There was no sufficient reason to believe that the Applicant’s case could not be finalised in the near future or within a reasonable period of time.

(2)  If there was an outstanding claim / legal proceeding, there was no sufficient reason to believe that the claim / legal proceeding could not be completed within a reasonable period of time.

(3)  The Applicant had convictions associated with crime(s) of a serious or violent nature.

(4)  The Applicant had failed to comply with the terms/conditions of recognizance.

(5)  The Applicant was re-arrested while on recognizance.

38.  Obviously, since Chow J’s judgment and since the appeal from that judgment heard by the Court of Appeal, further reviews of detention have been performed.  For present purposes, it is most relevant to concentrate on the recent reviews, and in particular following the decision of the Court of Appeal dated 8 June 2022.

39.  On that date, and in light of that decision, the Director invited the Secretary to conduct a review of the detention authority. The relevant memo had an Annex A setting out the relevant facts of the case and the tick box form at Part B.  On 14 June 2022, an update was provided by the Director to the Secretary, namely that the Applicant emergency passport had been extended until 12 July 2022, and that there was no outstanding legal impediment hindering his deportation.

40.  On 16 June 2022, the Secretary notified the Director that, balancing the individual circumstances it was considered that there were grounds for continued detention.  In the internal memo dated 14 June 2022, the material parts of the consideration are set out as follows (bold and underlining in original):

Review

2.  In considering whether the subject should continue to be detained pending his removal, the following circumstances have been taken into consideration:

(i)  whether the person’s removal is going to be possible within a reasonable time

-  There is no indication that the subject cannot be removed within a reasonable period of time given that there is no outstanding legal impediment hindering his deportation.

-  The Immigration Department has liaised with the local Consulate General of the Islamic Republic of Pakistan to extend the subject’s emergency passport until 12 July 2022.

(ii)  whether the person concerned constitutes a threat / security risk to the community

-  A deportation order has been made against the subject and his presence in Hong Kong is considered undesirable; and

-  The subject is a repeated offender and serious crime offender for which heavy sentence was passed by the Court.

(iii)  whether there is any risk of that person’s absconding and/or (re)offending

-  There is considerable risk of the subject’s absconding because he has record of failing to comply with the terms / conditions of recognizance.

(iv)  whether that person’s identity is resolved or satisfied to be genuine

-  There is no doubt on the subject’s true identity.

(v)  whether that person has close connection or fixed abode in Hong Kong

-  An elder sister and three step-brothers who are HKPRs.

(vi)  whether there are other circumstances in favour of release

-  Nil.

Recommendation

3.  Balancing the above circumstances, it is considered that there are grounds for his continued detention, especially considering his possible threat to the security of Hong Kong, the risk of his absconding / re-offending and the prospect of his removal within a reasonable time.  Subject to no other outstanding impediment, arrangement will be made to effect the subject’s deportation accordingly.

41.  The Director then considered whether to release the Applicant on recognizance in view of his continued detention under section 32(3). The concluding ‘Recommendation’ paragraph of an internal memo dated 21 June 2022 reads as follows:

Subject is a serious crime offender and a subject of deportation order.  In this regard, subject may pose a threat/security risk to the local community.  As arrangement is being made to effect subject’s deportation, it is believed that he can be removed within a reasonable period of time.  After careful consideration of all circumstances of the case, including the above-mentioned PAS’s conclusion on the review of subject’s detention, this is not a case warranting release of subject on recognizance in lieu of his detention under section 32(3) of the Ordinance pending his deportation from Hong Kong.

42.  The Applicant was notified of the outcome of the review of detention by Notice of Review of Detention dated 28 June 2022.

43.  In the meantime, on 27 June 2022, the Director sought a further review by the Secretary, in light of the fact that the Applicant had filed his Notice of Motion dated 22 June 2022 seeking leave to go to the Court of Final Appeal.  By memo dated 6 July 2022, the Secretary notified the Director of his view that there were grounds for continued detention.

44.  In an internal memo dated 13 July 2022, the Immigration Department officers again determined that the case was not one warranting release on recognizance in lieu of detention.

E.      The Applicant’s Argument

45.  In what he called his “Affidavit, including Skeleton Argument” filed for the hearing, the Applicant made a number of points in writing relating to the factual background, and in response to the basis of the Director’s justification for his continued detention identified in the Notice given to him in late May 2022.  Those responses are as follows (the original being handwritten in all capitals, but underlining as in original, and omitting references to the annexes):

1:  Your removal is going to be possible within a reasonable time.

Ans:  Firstly I would like to know what is a reasonable time?  As you may know I am detained for 27 months which I strongly believe is unreasonable.

2:  You pose or are likely to pose a threat or security risk to the community.

Ans:  I would like to know how did I become a threat or security risk to the community while on my detention period because from 23^rd of March 2020 until 16^th of July 2020 I did not pose a threat or security risk but suddenly after that I pose a security risk or threat.

3:  You may abscond and/or (re) offend.

Ans:  Firstly I believe we should not argue on the grounds which are based on “may” or “maybe” in this court.  Even though I would like this Court to know I have never abscond from any custody or any court bail conditions.

4:  There are no other circumstances in favour of your release.

Ans:  I would like to know what kind of circumstances does immigration required to release me?

5:  There is no sufficient reason to believe that your case cannot be finalised in the near future.

Ans:  As you may know I have been detained for 27 months.  I still have other legal proceedings to complete and other legal proceedings to attempt against deportation order.

6:  If there is an outstanding claim/legal proceeding there is no sufficient reason to believe that your claim/legal proceeding could not be completed within a reasonable time.

Ans:  I believe the above arguement explains the everything because they are similar grounds to each other.

7:  You have convictions associated with crimes of serious or violent nature.

Ans:  I do not think I have convictions related to violence.  My first event was handling stolen goods and my second offence was taking employment.

8:  You had failed to comply with the terms/conditions of recognizance.

Ans:  No argument.

9:  You are re-arrested during recognizance.

Ans:  No arguement.

10:  You are likely to engage in unlawful employment or business if released from detention.

Ans:  I do not think we can even argue on the immigration grounds which are based on “likely” or “maybe”.

46.  In his oral submissions, the Applicant further emphasised that:

(1)  though he was supposedly held in immigration detention, he had been transferred without notice to the Tai Tam Gap Correctional Institution (“TTGCI”), and was treated as though he was a prisoner – including by electronic tagging, prison clothing, CCTV surveillance, etc;

(2)  he had now been kept in immigration detention for longer than the 26 months in total which he spent in prison for the two offences of which he was actually convicted;

(3)  unlike the applicants in some other cases, he could provide full information relating to those persons who might act as his guarantor were he to be released on recognizance – and he said he would follow whatever conditions might be imposed on him;

(4)  the Director had not acted consistently when expressing a view whether he (the Applicant), if released, may pose a threat or security risk to the community – and it was difficult to see what had changed during his detention that led to the changed view that he may pose such a risk;

(5)  he had previously been outside detention for a lengthy period of around five years between 2014 and 2019, without problems;

(6)  a number of the documents being deployed against him were unfairly obtained, or the use was not a fair use of them (but he had been unable to obtain access to other documents or information which might have allowed him to demonstrate that);

(7)  overall, the period of detention must by now have become unlawful.

47.  Though I may not mention all of those points in my analysis below, I keep them all in mind in the balancing exercise.

48.  (I might also note that the Applicant made some further submissions, but they were really relevant to his underlying concern about being repatriated to Pakistan, rather than to the current matter.  Those, I have given no weight.)

F.      The Director’s Submissions

49.  As to the particular circumstances of this case, Mr Li made submissions broadly to the effect that:

(1)  TTCGI is an authorised place within which the Applicant may properly be kept in immigration detention;

(2)  the Director has all along exercised due diligence to effect the Applicant’s removal, since Chow J’s judgment in the previous application – including by contacting the Pakistani authorities in respect of travel documents;

(3)  the recent application made by the Applicant, seeking leave to appeal to the CFA, is unmeritorious and designed to frustrate removal – it was made only after the Director sought to remove him;

(4)  the lack of merits in that application – which fails to identify any proposed question of great general public importance, and where there was a failure to meet the original directions for filing written submissions – mean that it is almost bound to fail;

(5)  in other words, the Applicant’s removal is directly prevented by his own action in making an unmeritorious application for leave to appeal to the CFA;

(6)  the Director considers the Applicant poses, or is likely to pose, a threat or security risk to the community – and it cannot be disputed that the Applicant is a repeated offender, had been in breach of the terms of recognizance and was re-arrested while he was on recognizance;

(7)  the fact of having close connections in Hong Kong is outweighed by the above factors.

50.  In his oral submissions, Mr Li place particular emphasis on the fact that the Applicant would already have been released from detention – albeit by his removal to Pakistan – had he not chosen to launch the recent application seeking leave to go to the CFA, which application was almost bound to fail.  But for that application, he would already have been released, so the Applicant can be treated on the basis that he has chosen to remain in Hong Kong, whilst facing the prospect of continuing detention.  In any event, Mr Li submitted that as the application is of such little merit, it is likely to be rejected within a short period.

51.  In answer to the Court raising the potential paradox that the longer the detention, the sooner the expected removal might be – as was also identified by the Court of Appeal in the Harjang Singh case at §149 – Mr Li submitted that the matters should be looked at one step at a time.  The current outstanding application is of no merit, and it would not be appropriate to assume that it, if refused by the Court of Appeal, would be renewed to the CFA itself.

52.  Mr Li acknowledged that the period of detention to date is long, but submitted that remains lawful.

G.      The Court’s View

53.  In my view, the originally lawful detention of the Applicant has by now continued for a period which has become unreasonable, and is therefore unlawful.

54.  The starting point is to bear firmly in mind that the Applicant has been held in administrative detention since 23 March 2020, namely for around 28 months.  As the Applicant submitted, it is telling that that period is longer than the total period of imprisonment flowing from the conviction of the two offences.  But in any event, that is the period of detention against which the other matters need to be weighed.

55.  I take into account the absence on the face of most of the reviews of detention of any great variation (except updating on some of the procedural facts).  As time moves on, the analysis must surely change.  But, first, the change is likely to be in part through recognition of the period of detention already served.  Secondly, there is force in the criticism that the change – as was made to identify a security risk which had not previously been identified – is difficult to understand where there is no offered analysis explaining or justifying that change.

56.  Nor do the reviews of detention reveal any robust, up-to-date and current, assessment (which might be treated as reliable) as to what the real level of risk is that the Applicant would reoffend, and what the consequences would be of his reoffending.  The essential reliance by the Director and Secretary was on the (mere) fact of past offending – and that it occurred more than once, so was “repeated”.

57.  I take into account that the more serious offence committed by the Applicant – handling stolen goods, leading to the sentence of two years’ imprisonment – occurred in 2013.  Even then the Reasons for Sentence recorded the expression of remorse and that the admitted wrongdoing arose from association with dubious friends.  Neither that offence or the other offence involved violence.

58.  The Court’s task is, of course, to assess whether the period of detention is too long by the time of the assessment.  That assessment involves balancing (a) the gravity of any risks arising from release from detention against (b) the breach of the principle of liberty – where the longer the detention is (or may be), the greater the risk will have to be in order to justify it.  Whatever level of risk there may have been earlier in the detention, that has become of less weight in the balance as the period of detention has continued. 

59.  The risk of reoffending requires its own distinct assessment, by reference to both its likelihood and seriousness.  The magnitude and potential impact of that risk will vary according to the circumstances, and my own assessment of the risk in this case is that by this time, the risk no longer justifies continued detention.

60.  Nor do I think the separate risk of absconding, in the circumstances now pertaining, justifies continued detention.

61.  The strongest point made on behalf of the Director was, to my mind, that the Applicant might already have been released from detention (albeit following his removal) had he not launched the recent application seeking leave to go to the CFA.  I agree that – though it is ultimately a matter for the Court of Appeal – that application seems to be of little merit, and it may be that it can be and will be determined with some expedition.

62.  I take into account that there is the possibility, if the recent application is in due course dismissed by the Court of Appeal, of the Applicant’s renewing that application to the CFA.  In this case, that possibility – even if that further renewed application might not be anticipated to be one of great merit – and the time for it to be dealt with may take on more significance because it arises after an already lengthy period of detention.

63.  But, in any event, after a period approaching 28 months (847 days up to the date of hearing), in the overall circumstances of this case which include his ties to the community and the ability to exact appropriate conditions for a release on recognizance, it is both possible and appropriate to state that continued detention is no longer lawful.

H.      Result

64.  I order the Applicant to be released from detention under RHC Order 54 rule 4 and/or the inherent jurisdiction, on terms of recognizance acceptable to the Director.  Should any issue arise in that regard, that may be raised with the Court.

65.  There will be no order as to costs.