Nkokwo Andre Aka v. Hong Kong Sar Government Director of Immigration

HCAL 157/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 157 OF 2016

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J U D G M E N T

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1.On 29 August 2016, the applicant applied ex parte for a writ of habeas corpus.

2.On 30 August 2016, the court directed a hearing of the application on 5 September 2016 and asked the respondents to appear.  The respondents have since filed evidence to oppose the application and are represented by Mr Jesse Yu, Government Counsel.

The facts

3.The applicant is a national of the United States of America, who arrived in Hong Kong on 21 July 2016.  He was granted permission to enter and remain in Hong Kong as a visitor until 19 October 2016.

4.On 23 July 2016, the applicant was arrested by the police and charged with the offence of “possession of offensive weapon”.  He was brought before a magistrate on a holding charge and was ordered to be remanded before his next appearance on 8 August 2016.

5.At the same time, based on an assessment made by the police, the Director of Immigration (“the Director”) was of the view that the continued presence of the applicant in Hong Kong would pose security, public safety or public order risks to Hong Kong, and hence the application.  Thus, on 6 August 2016, the Director applied to the Chief Executive (“the CE”) through the Secretary for Security for the making of a removal under section 19(1)(a) of the Immigration Ordinance (Cap 115) (the “IO”).  Under section 19(1)(a), the CE can make a removal order against a person if that person is considered to be an undesirable immigrant who has not been ordinarily resident in Hong Kong for three years or more.

6.Upon the receipt of the application, the Principal Assistant Secretary for Security (“PAS for S”) authorized[1] the detention of the applicant under section 32(2)(a)[2] of the IO, pending the making of the application.

7.On 8 August 2016, the applicant was brought by the police to appear before the magistrate again.  At the hearing, the charge against him was withdrawn.  He was then continued to be detained under section 32(2)(a) of the IO as already previously authorised by the PAS for S.  He was served with a notice of detention by the Director although he refused to sign to acknowledge receipt.

8.On 10 August 2016, after considering the Director’s application in detail, PAS for S decided to recommend to the CE for the making of the removal order.  The PAS for S then further authorised the detention of the applicant under section 32(2)(b) of the IO,[3] pending the decision of the CE as to whether a removal order should be made.  The applicant was again served with a notice of detention to that effect and he again refused to sign an acknowledgment of receipt.

9.On the same day (ie, 10 August 2016), the CE ordered that a removal order (“the RO”) be issued against the applicant under section 19(1)(a) of the IO.  The making of the RO also revoked the prior permission granted to the applicant to enter and remain in Hong Kong.[4]  The applicant was then detained under section 32(3) of the IO,[5] pending his removal.  The applicant when served with the relevant detention notice still refused to sign its acknowledgement of receipt.

10.The Director subsequently promptly made the travel arrangements for the applicant to return to the United States with flight ticket issued on 15 August 2016 intended for departure from Hong Kong on 20 August 2016.

11.Prior to the scheduled departure, on 15 August 2016, the applicant lodged a non-refoulement claim, which was received by the Immigration Department (“ImmD”) on 17 August 2016.  In light of the claim, his intended departure under the RO on 20 August 2016 was suspended.  From 18 August 2016 onwards, the applicant was detained by the Director under section 37ZK of the IO[6] pending the final determination of his non-refoulement claim.

12.On 18 August 2016, the applicant was served a non-refoulement claim form, which was to be completed and submitted to the Director within 28 days, ie, by 15 September 2016.  As of the date of hearing, the applicant has yet to submit a completed form.  The respondents also say that a screening interview with the applicant has been tentatively scheduled for 22 September 2016, assuming the applicant will return the form by the deadline.

13.On 29 August 2016, the applicant filed an application for a writ of habeas corpus.

The present application

14.It is trite that in a habeas corpus application, the court is only concerned with the lawfulness of the detention, and there are two aspects of that question:

(1)   whether there is legal authority to make the challenged detention;[7] and

(2)   whether the detention was for such an unreasonably long period of time that the initially lawful detention was rendered unlawful.[8]

15.At the hearing, the applicant explains why his detention is wrongful as follows:

(1)   He is originally from Cameroon and was granted asylum status in the United States in 2002.  He has undergone education in the United States and has a job.

(2)   He came to Hong Kong with an intention to find his father who he said his mother met many years ago in Kowloon.

(3)   He was also seeking to go to the Mainland by transiting through Hong Kong.

(4)   He therefore poses no threat or risk to Hong Kong’s security or safety as alleged by the respondents.  This is particularly so as the criminal charge against him for possession of offensive weapon has been dropped, which charge, according to him, is framed by the police in any event.

(5)   As a result, he says the RO should not have been issued against him.

16.Properly understood, the applicant is in substance seeking to challenge the CE’s decision (“the RO Decision”) to issue the RO against him.

17.This raises the question of whether the court can in a habeas corpus application review the RO Decision.

18.In Hong Kong, it is well accepted that a court in habeas corpus proceedings cannot review the decisions underlying the relevant detention orders.  As was stated in Fidelis Ahuwaraezeama Emem v Superintendent of Victoria Prison [1998] 2 HKLRD 448 at 453C - D:

“... the purpose of an application for habeas corpus is to determine whether there is lawful authority for a detention. It is not to determine the reasonableness of any decision or whether there has been some failure to observe the rules of natural justice. Those are matters properly within the realm of judicial review.” (emphasis added)

19.Thus, although the court in a habeas corpus application may examine whether the necessary objective fact justifying the detention is established, it cannot go beyond and review an administrative decision involving an exercise of discretion underlying the detention order.  Any challenge to the administrative decision shall be made by way of judicial review. See: Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 at 112 - 113; R v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74 as explained in R v Secretary of State for the Home Department, Ex parte Muboyayi [1992] QB 244 at pp 267 - 8, per Taylor LJ.

20.This position has also been made clear by Bokhary PJ in Thang Thieu Quyen v Director of Immigration [1998] 2 HKLRD 179 at 208A - B, where His Lordship noted that:[9]

“In the present case, none of the appellants has sought by way of habeas corpus anything which comes instead within the province of judicial review. The proper process for challenging the removal orders is judicial review. And it is indeed in judicial review proceedings that the appellants are challenging the removal orders. What they seek by way of habeas corpus is their liberty pending the resolution of their judicial review challenge to the removal orders. That is to run the two processes in tandem, each along its proper path. The partnership between habeas corpus and judicial review is a natural one born of symbiosis. Habeas corpus has long been a metaphor for liberty. And more recently judicial review has become a metaphor for the rule of law. The appellants have resorted to both habeas corpus and judicial review. But they have not attempted to make either perform the function of the other.” (emphasis added)

21.It is therefore not open to the applicant to seek to challenge the making of the RO in this habeas corpus application. The appropriate route for the review of the RO Decision is by way of judicial review.

22.Insofar as the present detentions are concerned, it is clear to me that they are lawful for the following reasons.

23.First, the PAS for S and the Director clearly has the lawful initial power to make the relevant detentions:

(1)   The initial detention for the period between 8 and 10 August was made pursuant to sections 32(2)(a) and 32(2)(b) of the IO.  The objective facts required to invoke those powers are respectively the making of an application to the CE for a removal order to be issued (under section 32(2)(a)), and the CE’s consideration thereof (under section 32(2)(b)), which are both undeniable and objectively present (see paragraphs 5 - 8 above).

(2)   The detention since 10 August 2016 until 18 August 2016 was made under section 32(3) of the IO.  The objective fact required to invoke this power is the existence of a removal order against the applicant and the fact that arrangements are being made to effect the removal (See paragraphs 9 - 10 above).  These facts are again objectively and undeniably established.

(3)   Finally, from 18 August onwards, the applicant has been detained pursuant to section 37ZK of the IO.  The objective fact required to invoke this power is the existence of the non-refoulement claim, a fact which is not in any dispute.

24.Second, what then falls to be considered is whether the applicant was detained for such an unreasonably long period of time to render the initial detention unlawful.  The statutory power of detention is generally one which is impliedly limited to a period reasonably necessary for that purpose under the Hardial Singh principle.

25.In a deportation order context, the Director has a discretion in respect of the continued detention of a person pending his deportation.  Pending deportation means no more than “until” deportation, and so long as the Director is intent upon removing a person at the earliest possible moment and the Director remains reasonably of the view that he can do so within a reasonable period of time and that it will not be impossible for him to remove the person within that reasonable period of time, then the Director is entitled to continue to detain in the exercise of his discretion: Mahesh Rai v Secretary for Security and the Director of Immigration (HCAL 81/2008, 21 August 2008, per Hartmann J) at paragraph 12; A (Torture Claimant), supra, at paragraph 31.

26.It is obvious that this principle should apply similarly in a case involving detention made under a removal order.  See for example: R (Suppiah) v Secretary of State for the Home Department v Serco Group [2011] EWHC 2 (Admin) at paragraph 129 (a case concerning the power to detain pending removal); Thang Thieu Quyen v Director of Immigration [1998] 2 HKLRD 179 (a case concerning the power to detain resulting from removal orders made under section 13E of the IO).

27.What is reasonable is dependent on the circumstances of each case and is not to be assessed with hindsight: Mahesh Rai, supra, at paragraphs 16 - 17.

28.Applying these principles, it is also clear to me that the various relevant periods of detention of the applicant so far cannot be said to be unreasonably for the respective purposes of those detentions:

(1)   The respective detentions of the applicant made under sections 32(2)(a) and 32(2)(b) and section 32(3) of the IO lasted respectively only three days (between 8 and 10 August) and then nine days (between 10 and 18 August).  These in any view cannot be objectively said to be unreasonably long for the statutory purposes.

(2)   The detention since 18 August 2016 is made under section 37ZK of IO for the purpose of processing the applicant’s non-refoulement claim.  The detention by now is not unreasonably long in light of the following:

(a)   The non-refoulement claim form is due to be completed and returned to the ImmD by the applicant by 15 September 2016.  A screening interview has been tentatively scheduled with the applicant for 22 September 2016.  It is open to the applicant to return the form before the deadline and request an earlier screening interview.

(b)   In these circumstances, there are good reasons for the Director to believe at the material time that the non-refoulement claim could be determined within a reasonable time.

29.For these reasons, I am satisfied that the applicant’s detention is a lawful one.  This habeas corpus application must be refused.

Other considerations

30.Although the applicant’s habeas corpus application is for the above reasons without merit, given his above submissions made in court and the fact that the applicant is acting in person, I have also considered the possibility of directing this application to be converted to a leave application for judicial review challenging the RO.

31.However, after seeing the further evidence produced by the respondents at the hearing, I am also satisfied that it is unnecessary to do so.  I will explain why.

32.In response to the applicant’s submissions made at the hearing that there was no basis to issue the RO against him as he does not pose any risk or threats to the security of Hong Kong, the respondents have provided the court (and the applicant) a copy of the application (together with copies of its attachments) (“the RO Application”) made by the Director in his application to the CE through the Secretary for Security for the RO.  In the RO Application, the Director has explained why, based on various sketches, documents and objects which were found to be in the applicant’s possession, he was of the view that the continued presence of the applicant in Hong Kong at large may pose certain risks and threats to the public’s security and public order.  The respondents have asked this evidence not to be made public given its sensitive nature and the potential risk that it may cause some concern in the public.  Mr Yu for the respondents has therefore asked the court to look at the evidence with the hearing held in camera for that purpose.  I have found this request justified and thus directed the hearing to be held in camera insofar as the court is dealing with the evidence.[10]  The applicant has also given an undertaking not to disclose this evidence to other third party.

33.After looking at the evidence (and for the above reasons I obviously would not go into the details of it), I am satisfied that it is reasonably open to the Director to form the view that the applicant may pose security risk to Hong Kong if he is allowed to remain in Hong Kong.  Based on that, in turn, it must also be reasonable for the CE to regard the applicant an undesirable person and thus issue the removal order.  This is particularly so as the court should give a due margin of appreciation to the decision maker for matters concerning public order or national security.[11]

34.The applicant has explained at the hearing that the sketches found in his possession as referred above are not in fact his but his friend’s, who is studying at a university in the United States.  The applicant was only asked to keep them by his friend as his friend is getting into troubles in the United States.  Presumably, he had explained the same to the police and the Director.

35.In my view, it must similarly be reasonably open to the Director to have doubts over the explanations, in particular as to why the applicant would have to carry those sketches with him in coming to Hong Kong.  In the premises, despite the explanations, I am convinced that it cannot be argued that the Director’s above assessment and recommendation, and thereafter the CE’s decision to issue the RO, are Wednesbury unreasonable.

36.In the premises, based on what the applicant has told this court, I could not see any reasonably arguable grounds that could be advanced by him to challenge the RO.  No useful purpose would therefore be served in directing the habeas corpus application to be converted to a leave application for judicial review.

Conclusion

37.For the above reasons, I am satisfied that the applicant’s present detention is lawful.  I therefore would dismiss the application for the issue of the writ of habeas corpus.

38.I will further make no order as to costs in this application.

The applicant appeared in person

Mr Jesse Yu, Government Counsel, Department of Justice, for the respondents