Jum Alie v. Hong Kong Sar Government

HCAL 20/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 20 OF 2017

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D E C I S I O N

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INTRODUCTION

1.I have before me an application by the applicant seeking an order that a writ of habeas corpus ad subjiciendum be issued in respect of his detention by the Director of Immigration (“the Director”).

2.The application was first made on 26 January 2017.  On that date, Mr Justice Au directed that there be an oral hearing of the application on 3 February 2017, and that the Director shall appear at the hearing and file and serve evidence, if any, and skeleton submissions by 4 pm on 2 February 2017.

3.The court has since received the affirmation of Kwok Yin On Roy (Immigration Officer) and the affirmation of So Man Tin (Acting Senior Immigration Officer) and the Director’s skeleton submissions all dated 2 February 2017. The court has also heard submissions from the applicant and from Ms Vivian Kao (Government Counsel) on behalf of the Director this morning.

Background facts

4.The following brief summary of the background facts is based on the affirmations of Kwok Yin On Roy and So Man Tin.

5.The applicant is a Gambian national.  On 8 October 2014, he arrived in Hong Kong via Lowu Control Point on the strength of his Gambian passport.  He was permitted to remain in Hong Kong as a visitor for 90 days until 6 January 2015.

6.The applicant did not depart from Hong Kong as required and has overstayed in Hong Kong since 7 January 2015.

7.On 7 January 2015, the applicant surrendered to the General Investigation Section of the Immigration Department for having overstayed.  He was released on recognizance under Section 36(1) of the Immigration Ordinance, Cap 115 (“the Ordinance”) on the same day.

8.On 6 February 2015, the applicant was arrested by officers of the Immigration Department for the suspected offence of “breach of condition of stay”.  During his interview, he claimed that he would be in danger should he return to Gambia.  The applicant was released on recognizance under Section 36(1) of the Ordinance on the same day.

9.On 11 February 2015, the applicant’s claim for non‑refoulement protection was referred to the Removal Assessment Section of the Immigration Department for assessment.

10.While on recognizance, the applicant was arrested by the Police on 28 May 2015.

11.On 25 September 2015, the applicant was convicted of two counts of “trafficking in a dangerous drug” and sentenced to a term of imprisonment of 14 months for each count, with 2 months of the second sentence to run consecutively to the first one, making a total of 16 months of imprisonment.

12.By reason of his convictions, deportation proceedings were initiated against the applicant.  In an interview of the applicant on 7 December 2015, he was informed of the intended deportation.  The applicant objected to the intended deportation on (inter alia) the ground that his life would be in danger in Gambia and that he had lodged a torture claim.

13.On 16 April 2016 (the date of his release from prison), the applicant was informed that consideration of whether a deportation order would be made against him would be withheld pending the screening of his non-refoulement claim, but in the meantime the Director might consider the issuance of a removal order against him.

14.The applicant’s non-refoulement claim was refused by the Director on 4 July 2016, and his appeal/petition against the Director’s decision was dismissed by the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office on 4 October 2016 after an oral hearing on 20 September 2016.

15.On 17 October 2016, the applicant made further written submissions stating, among other things, that he “would like to open [his] case with BOR 2, Bill of Right.  [His] USM has been refused, but [his] case will still be the same.”

16.On 26 October 2016, a removal order was issued against the applicant pursuant to Section 19(1)(b) of the Ordinance.

17.By the Director’s “Notice of Further Decision” dated 27 October 2016, the applicant’s non-refoulement claim on the ground of his absolute and non-derogable rights under the Hong Kong Bill of Rights was refused.  His appeal/petition against this further decision of the Director was dismissed by the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office on 6 December 2016.

18.On 29 December 2016, a deportation order was issued against the applicant.

19.The applicant’s further requests to make another non‑refoulement claim, based on more or less the same grounds as previously advanced by him, were refused by the Removal Assessment Section of the Immigration Department on 16 January 2017.

20.On the basis of the deportation order and there being no apparent legal impediment to the applicant’s deportation, arrangement was made for the applicant to be removed to Gambia on 21 January 2017.  However, due to his emotional and uncooperative behaviour prior to being escorted to the Hong Kong International Airport and also at the boarding gate prior to departure (including making threats that he would hurt himself or others), the duty supervisor of the airline decided to off-load the applicant from the flight by reason of aviation security.  He was then escorted back to the Ma Tau Kok Detention Centre pending further arrangement for his removal under Section 25 of the Ordinance.

21.The applicant latest request made on 30 January 2017 to re‑open his non-refoulement claim was rejected by the Removal Assessment Section of the Immigration Department on 2 February 2017.

22.Currently, the applicant is scheduled to be removed from Hong Kong on 11 February 2017, subject to approval by Ethiopian Airlines.  Mr Kowk has informed the court that in view of the applicant’s previous record of uncooperative behaviour during the repatriation exercise on 21 January 2017, the Hong Kong Office of Ethiopian Airlines has to refer the Immigration Department’s request to repatriate the applicant to their Head Office in Ethiopia for consideration, and the approval process may take around two to four weeks.  Nevertheless, Mr Kwok has confirmed that the applicant’s deportation will be arranged as expeditiously as possible, subject to approval by Ethiopian Airlines as aforesaid.

23.Since the applicant’s release from prison on 16 April 2016, he has been detained by the Director under various provisions of the Ordinance, as follows:

(1)  Between 16 April 2016 and 20 April 2016, the applicant was detained under Section 32(2A)(a) of the Ordinance pending a decision on whether a removal order should be made against him.

(2)  Between 20 April 2016 and 4 October 2016, the applicant was detained under Section 37ZK of the Ordinance pending a final determination of his non-refoulement claim.

(3)  Between 4 October 2016 and 26 October 2016, the applicant was detained under Section 32(2A)(a) and 32(2A)(b) of the Ordinance pending a decision on whether a removal order should be made against him.

(4)  Between 26 October 2016 and 13 December 2016, the applicant was detained under Section 32(3A) of the Ordinance pending his removal from Hong Kong.

(5)  Between 13 December 2016 and 29 December 2016, the applicant was detained under Section 29(1) and 29(2) of the Ordinance for inquiry as to whether he ought to be deported in the light of his criminal convictions.

(6)  Lastly, since 29 December 2016 (up to now), the applicant has been detained under Section 32(3) of the Ordinance pending his removal from Hong Kong.

24.In his affirmation dated 26 January 2017 filed in support of the application, the applicant states that:-

(1)  he has been detained in the Castle Peak Bay Immigration Centre for “9 months and 10 days”;

(2)  the Immigration Department closed his case and tried to deport him from Hong Kong back to his home country which, it is alleged, is contrary to the UN Convention against Torture; and

(3)  he will be subjected to torture if he goes back to his home country because of political chaos in Gambia.

Discussion

25.The legal principles governing an application for the issue of a writ of habeas corpus are well settled.  The central question is whether the detention is unlawful (see Fidelis Ahuwaraezeama Emen v Superintendent of Victoria Prison [1998] 2 HKLRD 448, at 453C-D per Stock J, as he then was).

26.An unlawful detention is one that is made without proper lawful authority.  An initially lawful detention can be turned into an unlawful detention if it falls fouls of the Hardial Singh principles as summarised by Dyson LJ (as he then was) in R(I) v Secretary of State for the Home Department [2003] INLR 196 (at paragraph 46) and adopted by Ribeiro PJ in Ghulam Rbani v Secretary for Justice for and on behalf of the Director of Immigration (2014) 17 HKCFAR 138 (at paragraph 23), as follows:-

“(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

(iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal.”

27.In relation to the question of whether a person has been detained for a period that is reasonable in all the circumstances, the following statement of principle by Au J in Bhullar Angad Singh v HKSAR, HCAL 134/2014 (21 October 2014), at paragraph 17, is applicable:-

“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, Hartmann J) at paragraph 12; A (Torture Claimant), supra, at paragraph 31.”

28.The applicant is currently detained under Section 32(3) of the Ordinance, which provides as follows:-

“A person in respect of whom a removal order under section 19(1)(a) or a deportation order is in force may be detained under the authority of the Secretary for Security pending his removal from Hong Kong under section 25.”

29.The applicant’s current detention is, prima facie, lawful because:-

(1)  a deportation order in respect of the applicant is in force; and

(2)  the applicant is being detained pending his removal from Hong Kong under Section 25 of the Ordinance.

30.On the question of whether the applicant has been detained for a period that is reasonable in all the circumstances, there is nothing in the evidence before the court to show that it has become apparent to the Director or the Secretary for Security at any time that it would not be possible to effect the applicant’s deportation within a reasonable time.  On the contrary, the evidence shows that: (i) priority has been given to the assessment of the applicant’s non-refoulement claim in view of his detention, (ii) his non-refoulement claim has been processed expeditiously, (iii)the Director has acted with the reasonable diligence and expedition to effect removal, (iv) the Director has remained reasonably of the view that he can do so within a reasonable period of time, and (v) there has been periodic review of the applicant’s detention.  In all the circumstances, I find that the applicant has been detained for a period that is reasonable in all the circumstances, and his current detention is compliance with the Hardial Singh principles.

31.Grounds (2) and (3) relied upon by the applicant in his affirmation do not give rise to any basis for the issue of a writ of habeas corpus in the present case. The question of whether the applicant ought to be deported back to his home country depends on the validity of his non‑refoulement claim, which has been assessed in accordance with the normal procedures.  The question before me relates to the legality of the applicant’s detention, which is a separate question.

32.There is nothing in the materials before me, including the submissions made by the applicant in person, to show that his current detention is unlawful. 

Disposition

33.The application for the issue of a writ of habeas corpus is dismissed, with no order as to costs.

The applicant acting in person

Ms Vivian Kao, GC, instructed by Department of Justice, for the respondent