T v. Director of Immigration

HCAL 241/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 241 OF 2016

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D E C I S I O N

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1.This is the applicant’s bail application pending his application for leave for apply for judicial review.

2.The Notice of Application for Leave to Apply for Judicial Review (Form 86) in this judicial review application was filed on 30 December 2016. 

3.In this judicial review application, the applicant applies for leave to challenge the decisions of the Director of Immigration (“the Director”) on or about 29 and 30 September 2016, 4, 9 and 23 November 2016 and 2 December 2016 continuing to detain the applicant under sections 32(3A) and 37ZK of the Immigration Ordinance, Cap 115 (“the Ordinance”) and/or refusing to release the applicant by permitting him to enter into a recognizance under section 36(1) of the Ordinance, pending the determination of the applicant’s claim for non-refoulement protection under the unified screening mechanism.

4.In the Form 86, inter alia, the applicant seeks an Order granting him bail pending a final determination of the judicial review application. 

5.On 11 January 2017, this court gave directions, inter alia, to the effect that (a) the applicant’s bail application on an inter partes basis be heard on 16 January 2017; and (b) the Director should file and serve his evidence on 13 January 2017 and attend the hearing on 16 January 2017 should he object bail being granted to the applicant.

6.There is no dispute that the court has jurisdiction to grant bail in judicial review applications where there is a pending application for leave to apply for judicial review [see: Practice Note 53/14/38 of the Hong Kong Civil Procedure 2017; PV v Director of Immigration [2004] 3 HKC 637, at paragraphs 20 to 33].

7.When the court considers whether or not an applicant should be granted bail, the court is exercising an original jurisdiction but not judicially reviewing the decision of the administrative authorities.  However, given that the Director is designated by the Ordinance as the person to decide whether a person against whom a removal order is in force should be detained, it is plainly right that great weight should be given to the fact that the Director has decided that the applicant should be detained and to the reasons why the Director has opposed the release of the applicant [see: PV (Ibid) at paragraph 34].

8.Moreover, from the nature of the relief sought in this judicial review application, it is apparent that the granting of bail at this stage would grant the applicant substantially all or a large part of the relief sought by the applicant in the judicial review application itself. In such circumstances, the applicant should at least show that he is likely to succeed at the substantive judicial review [see: for example, Practice Note 29/1/18 of the Hong Kong Civil Procedure 2017 at page 690]. 

9.Having regard to the above considerations, at the present stage, I am prepared to accept the Director’s view that the applicant’s claim for non-refoulement protection under the unified screening mechanism may still be decided within a reasonable time in the foreseeable future, so as to justify the continued detention of the applicant.

10.In this regard, I take into account that in the very near future there will be a hearing of the applicant’s appeal at the Torture Claims Appeal Board (“TCAB”) on 24 February 2017.  I also take into account that as early as 26 May 2016, TCAB had acknowledged the urgency of the applicant’s appeal/petition against the Director’s decision in refusing his non-refoulement claim and had confirmed its decision to accord priority to the applicant’s appeal/petition. Based on the available information, there is insufficient basis to suggest that the hearing before the TCAB cannot go ahead as scheduled on 24 February 2017, whether because of the applicant’s alleged mental condition or otherwise.

11.For the reasons stated above, the applicant’s application for bail is refused.

Mr Francis Ngan, instructed by Daly & Associates, assigned by Director of Legal Aid, for the applicant

Ms Jenny Cheung, Senior Government Counsel of Department of Justice, for the putative respondent