Harjang Singh v. Secretary for Security and Another

HCAL 224/2021

[2021] HKCFI 705

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 224 OF 2021

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Before: Hon Chow J in Court

Date of Hearing: 12 March 2021

Date of Decision: 19 March 2021

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D E C I S I O N

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INTRODUCTION

1.The Applicant is a non-refoulement claimant, and has been in detention pending his removal from Hong Kong under s 32(3) of the Immigration Ordinance, Cap 115 (“the Ordinance”) since 17 August 2018.  This is his application for leave to apply for judicial review of “[t]he administrative detention of the Applicant in CIC under … section 32(3) of the Immigration Ordinance, Cap 115”.  The following relief is sought by the Applicant in the Form 86 filed on 24 February 2021:

(1)  an order that the Applicant be released from detention under Order 54, r 4 of the Rules of the High Court, Cap 4A, and/or the inherent jurisdiction of the court;

(2)  alternatively, an order that a writ of habeas corpus ad subjiciendum do issue under Order 54 r 2(1) and/or an order that the Secretary and Director do appear before the court to certify the grounds for the Applicant’s detention, under s 22A of the High Court Ordinance, Cap 4, and Order 54, r 2(1)(b);

(3)  a declaration that the Applicant’s detention has been unlawful since 7 June 2019, or some time thereafter, and is presently unlawful; and

(4)  damages or an order for damages to be assessed.

2.In the Form 86, at §3, six grounds of judicial review of the Applicant’s detention are raised:

“(1) Hardial Singh Principle 3 (HS3). Deportation cannot be effected within a reasonable time. The Respondents cannot say when, or how they will effect it. There are obstacles to removal. The evidence as it stands supports an inference that detention is indefinite.

(2) HS2. The Detention has gone on for a period of time that in all the circumstances is unreasonable. Eleven factors (all previously put to the Director) point overwhelmingly towards release.

(3) HS4. There has been a period of administrative inactivity, now confirmed by the Director, of about 28 months (since September 2018). There has been an absence of promptitude rendering the Detention unlawful.

(4) Mandatory considerations. The Respondents have failed to take into account mandatory relevant considerations, being representations and submissions made on the Applicant’s behalf throughout 2020 and in the January Letter [dated 13 January 2021].

(5) Procedural impropriety. The Respondent have taken decisions to detain the Applicant with the benefit of material provided by the Commissioner of Police (and potentially others) that has not been provided to the Applicant. The Applicant has had no opportunity to make representations in respect of that material.

(6) Error of law.  The Director declines to provide any substantive reasons as to why ongoing detention is Hardial Singh - compliant, referring instead to (e.g.) the frequency of his reviews and his liaison with airlines.  As matters stand, it appears that the Director misunderstands the substantive nature of Hardial Singh constraints.”

3.The Hardial Singh principles referred to are those as formulated by Dyson LJ (as Lord Dyson then was) in R (I) v Secretary of State for the Home Department [2003] INLR 196 (at §46), and adopted by the Court of Final Appeal in Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138 (at §23):

“(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 reasonable diligence and expedition to effect removal.”

4.At the hearing on 12 March 2021, the parties were agreed, I understand, that the question relating to the Applicant’s release from detention should first be dealt with, leaving the rest of the application to be dealt with subsequently.  In relation to the Applicant’s release from detention, Mr Parker (for the Applicant) relies on Grounds (1) and (2) of judicial review.

BACKGROUND FACTS

5.The Applicant previously made two applications for a writ of habeas corpus (“the first habeas corpus application” and “the second habeas corpus application” respectively) in respect of his detention in CIC which commenced on 17 August 2018.  Both applications were dismissed by the court:

(1)  The first habeas corpus application was made on 24 September 2018 and rejected by the court on 2 October 2018 ([2018] HKCFI 2234).

(2)  The second habeas corpus application was made on 29 May 2019 and rejected by the court on 6 June 2019 ([2019] HKCFI 1486).

6.For ease of understanding, I shall set out the relevant basic facts of the Applicant’s case as mentioned in the court’s previous decisions in the two habeas corpus applications, and supplement them by further information disclosed in the Applicant’s Form 86/First Affidavit filed on 24 February 2021 as well as some other material facts occurring since the handing down of the court’s decision in the second application.

7.The Applicant is an Indian national born on 15 January 1973.  He first entered Hong Kong with his mother as visitors in March 1991.  In August 1991, they were both allowed to remain in Hong Kong as dependants of the Applicant’s elder sister, a Hong Kong resident.  The Applicant’s mother has since acquired the Hong Kong permanent resident status. The Applicant was last permitted to remain in Hong Kong with a limit of stay until 28 April 1999.

8.According to the Applicant, his eldest brother died in December 1991, and was survived by his wife (Ms Kulwinder Kau) and two children.  The Applicant further alleges that in 1994, he visited India, and was somehow forced by two elder brothers to marry his widowed sister-in-law. The Applicant later returned to Hong Kong.

9.Prior to the issuance of the deportation order against the Applicant more particularly described below, he had been convicted of the following offences:

(1)  on 3 June 1994, for making a false instrument with intent, contrary to Section 71 of the Crimes Ordinance; and attempted theft, contrary to Section 9 of the Theft Ordinance and Section 159G of the Crimes Ordinance – he was sentenced to a total of 4 months’ imprisonment suspended for 18 months;

(2)  on 7 October 1996, for wounding or inflicting grievous bodily harm, contrary to Section 19 of the Offences Against the Person Ordinance – he was sentenced to a detention centre order pursuant to the Detention Centres Ordinance;

(3)  on 3 November 1999, for wounding with intent to do grievous bodily harm, contrary to Section 17 of the Offences Against the Person Ordinance - he was sentenced to 3 years’ imprisonment; and

(4)  on 8 May 2000, for doing an act tending and intended to pervert the course of public justice, contrary to common law, and for wounding with intent to do grievous bodily harm, contrary to Section 17 of the Offences Against the Person Ordinance - he was sentenced to a total of 2 years’ imprisonment.

Pausing here, I should mention that the Applicant alleges that his criminal convictions referred to in (2), (3) and (4) above were related to or arose from his forced marriage in 1994.  Even if this allegation is true, I do not see that it can possibly amount to a good excuse for the Applicant to commit the aforesaid serious criminal offences.

10.On 16 July 2003, the Applicant completed his prison term and was transferred to Victoria Prison for detention under s 29(1) of the Ordinance.

11.By reason of the criminal convictions mentioned in §9(3) and (4) above, the Permanent Secretary for Security issued a deportation order for life dated 22 July 2003 (“the Deportation Order”) against the Applicant pursuant to Section 20(1)(a) of the Ordinance, requiring the Applicant to leave Hong Kong and prohibiting him from being in Hong Kong at any time thereafter on the grounds that, amongst other things:

(1)  the Applicant was not a Hong Kong permanent resident; and

(2)  the Applicant had been found guilty in Hong Kong of an offence punishable with imprisonment for not less than two years.

Authorization was also given for the Applicant’s detention under s 32(3) of the Ordinance on 22 July 2003.

12.On 16 December 2003, the Applicant’s application to rescind the Deportation Order was refused.

13.On 10 May 2004, the Applicant lodged a torture claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment.  On 12 November 2004, the Applicant was released on recognizance.

14.While on recognizance, the Applicant committed, was convicted of, the offence of possession of offensive weapon, contrary to Section 17 of the Summary Offences Ordinance.  On 15 April 2011, he was sentenced to 4 months’ imprisonment suspended for 2 years.

15.On 31 December 2012, the Applicant’s torture claim was rejected by the Torture Claim Assessment Section of the Immigration Department.  On 26 March 2013, his appeal against the rejection of his torture claim was dismissed after a paper review.

16.On 29 April 2013[1], the Applicant made a fresh non-refoulement claim on the grounds of CIDTP under HKBOR 3.  Pausing here, I should mention that, at §11 of the court’s decision on the Applicant’s first habeas corpus application, it was stated that the Applicant made the non-refoulement claim on 18 March 2014 (instead of 29 April 2013).  The precise date on which that application was made is not, however, material for the present purpose.

17.On 20 April 2016, the Applicant married a Hong Kong permanent resident (“Ms Wong”) in Hong Kong, and became the step-father of Ms Wong’s daughter, who is also a Hong Kong permanent resident. Pausing here, it is not clear how the Applicant could lawfully marry Ms Wong, in view of his earlier marriage to Ms Kulwinder Kau in India in 1994. Nevertheless, this matter does not require further consideration in this application, and will not be taken against the Applicant.

18.On 17 July 2017, the Applicant was convicted of the offence of blackmail, contrary to Section 23(1) of the Theft Ordinance.  On 16 August 2017, he was sentenced to 3 years’ imprisonment.  The conviction and sentence were subsequently upheld by the Court of Appeal on 17 December 2019 ([2019] HKCA 1439).

19.Upon his discharge from prison on 17 August 2018, the Applicant was detained under Section 32(3) of the Ordinance pending his removal from Hong Kong.

20.The Director treated the Applicant’s claim for non-refoulement protection referred to in §16 above as a claim under all applicable grounds (with the exception of the risk of torture which had already been assessed and rejected), and processed the claim under the USM.  A screening interview of the Applicant on 19 September 2018 was arranged.  However, the screening interview did not take place because the Applicant insisted that the interview should be conducted with the assistance of a Punjabi interpreter from India, instead of someone from Pakistan as arranged.  No further screening interview of the Applicant was eventually conducted.  The Director assessed the claim based on the available information before him, and rejected it by a Notice of Decision dated 26 September 2018.

21.In the meantime, on 24 September 2018, the Applicant made the first habeas corpus application.  That application was heard on 28 September 2018, and rejected by the court on 2 October 2018.

22.On 4 October 2018, the Applicant, with the assistance of the Duty Lawyer Service, lodged a Petition (“the Petition”) to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) against the decision of the Director of Immigration made on 26 September 2018 rejecting his non-refoulement claim.

23.On 28 November 2018, the Director informed the Board that the Applicant was under detention and requested the Board to accord priority to the Petition.  On 30 November 2018, the Board informed the Director that it was aware of the urgency of the matter and had decided to expedite consideration of the Petition.

24.On 17 December 2018, the Board gave notice to the Applicant and Director that the Petition would be heard on 11 February 2019.

25.At the hearing before the Board on 11 February 2019, the Applicant (through his counsel) sought an adjournment on the grounds that (i) he did not have sufficient time to go through the hearing bundle, and (ii) he wished to gather further evidence from his friends in India to support his non-refoulement claim.  The Board allowed the Applicant’s application for adjournment and re-fixed the Petition to be heard on 20 May 2019.

26.On 28 March 2019, the Applicant applied for a dependant visa, with Ms Wong as his sponsor.

27.On 10 May 2019, shortly before the re-scheduled hearing of the Petition, the Applicant’s counsel wrote to the Board seeking a further adjournment of the hearing of the Petition for 3 months on the ground that the Applicant needed more time to gather evidence in India.  By a letter dated 16 May 2019, the Board informed the Applicant and Director that the application to adjourn the hearing of the Petition for 3 months by the Applicant was allowed, but the Board also made it clear that the adjournment would be the “final” one that would be granted to the Applicant for him to prepare his case for the hearing, and that a new hearing date would be fixed having regard to the availability of a suitable interpreter and in consultation with counsel’s diaries.

28.On 20 May 2019, the Applicant’s lawyers informed the Director that the Board had adjourned the hearing of the Petition for 3 months.

29.On 29 May 2019, the Applicant made the second habeas corpus application.  That application was heard on 3 June 2019, and rejected by the court on 6 June 2019.

30.On 18 July 2019, the Board directed that the hearing of the Petition was to take place on 12 September 2019.  The hearing took place as scheduled.  On 7 November 2019, the Board dismissed the Petition.

31.On 31 December 2019, the Applicant made an application for leave to apply for judicial review of the Board’s decision (HCAL 3895/2019, hereinafter referred to as “the JR Application”).

32.On 11 December 2020, the Department of Justice wrote to the court to enquire as to when the JR Application would be heard, and requested the court to accord priority to the case.  On 15 December 2020, the court gave notice to the parties that the JR Application would be heard on 29 December 2020.

33.On 21 December 2020, Mohnani & Associates, on behalf of the Applicant, wrote to the court seeking an adjournment of the hearing of the JR Application, on the ground that the Applicant had an outstanding legal aid appeal (LAA No 159 of 2020).  The legal aid appeal was originally scheduled for hearing on 28 August 2020.  However, following the filing of a notice to act by Mohnani & Associates in that matter and a letter to the Legal Aid Department on the merits of the JR Application, the legal aid appeal was rescheduled for a hearing with a longer time slot.  I am given to understand that no date has been fixed for the rescheduled hearing of the legal aid appeal.

34.On 24 December 2020, the court forwarded a copy of Mohnani & Associates’ letter dated 21 December 2020 to the Department of Justice for comment.  On 28 December 2020, the Department of Justice wrote to the court stating that whether the date for the hearing of the JR Application should be vacated was a matter in the court’s discretion.

35.On 28 December 2020, the court made an order vacating the hearing date of the JR Application scheduled for 29 December 2020, and directed the Applicant to inform the court of the result of the legal aid appeal (once it was known).

36.Throughout the period since the date of the Applicant’s detention under s 32(3) of the Ordinance, the Applicant, either by himself or through his lawyers or other persons, has made many applications to the Director for him to be released on recognizance.  It is not necessary to set out the details of all those applications or the Director’s responses, save to mention that the applications have not been successful.

37.There have also been periodic reviews of the Applicant’s detention by the Permanent Secretary for Security (13 times) and/or the Director (31 times) between 27 September 2018 and 3 March 2021.  Details of those periodic reviews are set out in §§29 - 33 of the Affirmation of Chen Kam Lung Alan which I do not propose to repeat in this decision.  It would appear that the Director’s main concern about the release of the Applicant from detention relates to the risks of re-offending and/or absconding, having regard to the following matters:

(1)  the Applicant has 8 criminal convictions in Hong Kong, including 2 convictions after the issuance of the Deportation Order against him;

(2)  while being released on recognizance, the Applicant committed and was convicted of the offences of possession of offensive weapons and blackmail for which he was sentenced to 4 months’ imprisonment (suspended for 2 years) and 3 years’ imprisonment respectively;

(3)  the Applicant had failed to comply with the reporting condition under his recognizance since 13 July 2016 until he was arrested by the police on 17 August 2016;

(4)  his failure to comply with the reporting condition under his recognizance in 2016 was shortly after his marriage to Ms Wong in Hong Kong; and

(5)  the offence of blackmail of which the Applicant was convicted was a very serious offence in itself (see §62 of the Affirmation of Chen Kam Lung Alan).

APPLICATION FOR JUDICIAL REVIEW

38.On 24 February 2021, the Applicant made the present application for leave to apply for judicial review.

39.In the Form 86, the Applicant also complains about, inter alia:

(1)  the conditions of his current detention, including denial of medication and poor living conditions in CIC (see §§33-35 of the Form 86, and §§118-120 and 123 of the Applicant’s First Affidavit)[2];

(2)  the effect of his continued detention on his family members, including his mother, wife, step-daughter and younger sister (also a Hong Kong permanent resident) (see §§36-39 of the Form 86); and

(3)  the refusal of the Director to release him from detention despite repeated requests, including a petition signed by 58 persons and letters from the Khalsa Diwan Hong Kong Temple, the Singha Sabha Sports Club and the Pakistan Association of Hong Kong Limited (see §§43-44 of the Form 86).

40.The Applicant offers the following conditions for his release:

(1)  cash bail in the sum of HK$50,000;

(2)  surety in the sum of HK$50,000;

(3)  report to the Immigration Reporting Centre as frequently as the Director wishes;

(4)  reside at a fixed address of the Applicant’s wife or a friend;

(5)  refrain from entering certain districts of Hong Kong, as the Director may see fit;

(6)  keep the peace;

(7)  refrain from taking up employment whether paid or unpaid; and

(8)  obey an 11:00 pm to 7:00 am curfew, or a curfew of such other hours as the Director deems fit (see §45 of the Form 86).

41.On 25 February 2021, the court gave directions to the parties on the filing of evidence, and directed that the hearing of the application for a writ of habeas corpus and the application for leave to apply for judicial review was to take place on 12 March 2021.

42.As earlier mentioned, at the hearing on 12 March 2021, Mr Parker concentrated on the issue of the Applicant’s release, and relied on Grounds (1) and (2) of judicial review as set out in §3(1) and (2) of the Form 86 in support of the application for his release.

GROUND (2): WHETHER THE APPLICANT HAS BEEN DETAINED FOR AN UNREASONABLE PERIOD OF TIME

43.I shall first consider Ground (2) of judicial review.  It is trite that the determination of whether a person’s detention is Hardial Singh-compliant is a matter for the court.  The court is the primary decision-maker, and its task is not merely to review the reasonableness of the decision of the Secretary/Director in the public law sense.

44.As earlier mentioned, the Applicant has been detained for some 30 months under Section 32(3) of the Ordinance.  This is undoubtedly a very substantial period of time.  However, the question of whether a period of detention has become unreasonable under the Hardial Singh principles is not to be determined solely by reference to the number of days or months of detention, although the period itself is obviously a relevant and important consideration.

45.The question of how long it is reasonable for a person to be detained under Section 32(3) of the Ordinance pending his removal from Hong Kong depends on a holistic assessment of all relevant circumstances. In R(I) v Secretary of State for the Home Department [2003] INLR 196, at §48, Dyson LJ stated as follows:

“It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences.”

46.Further guidance on the question of whether a period of detention has become unreasonable can be found in the judgment of Hickinbottom J in R(Mahfoud) v Secretary of State for the Home Department [2010] EWHC 2057 (Admin), at §6:

“(iv) There is no red line, in terms of months or years, applicable to all cases, beyond which time for detention becomes unreasonable. What is a ‘reasonable time’ will depend upon the circumstances of a particular case, taking into account all relevant factors.

(v) Those factors include:

(a) The extent to which any delay is being or has been caused by the deportee’s own lack of cooperation in, for example, obtaining an emergency travel document (‘ETD’) from his country of origin.

(b) The chances that the deportee may abscond (which may have the effect of defeating the deportation order).

(c) The chances that the deportee, if at large, may reoffend. If he may reoffend, of particular importance is, not simply the mathematical chances of reoffending, but the potential gravity of the consequences to the public of reoffending if it were to occur.

(d) The effect of detention on the deportee, particularly upon any psychiatric or other medical condition he may have. The conditions in which the deportee is detained may also be relevant, although less so if he is required to be detained in particular conditions (e.g. in prison estate as opposed to a detention centre) because of his own behaviour.

(e) The conduct of the Secretary of State, including the diligence and speed at which efforts have been made to enforce the deportation order including obtaining an ETD.

That list of factors is not, of course, exhaustive.

(vi)  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. There is no ‘trump card’. Therefore, even where there is a high risk or even inevitability of reoffending and/or absconding, nevertheless there may still be circumstances in which Article 5 requires a deportee’s release.”

47.In the assessment of whether the Applicant’s detention in the present case has gone on for an unreasonable period of time, I consider the following matters to be relevant.

48.First, it is clear from the history of this matter that the removal of the Applicant from Hong Kong (subject to the resolution of his outstanding non-refoulement claim) has been substantially delayed by the Applicant’s repeated applications to adjourn the hearings of the Petition and JR Application.

(1)  The Petition would have been heard on 11 February 2019 but for the Applicant’s applications to adjourn the hearing on the ground (inter alia) that he needed more time to gather evidence. The Petition was eventually only heard by the Board on 12 September 2019, resulting in a delay of some 7 months.

(2)  The JR Application would have been heard on 29 December 2020 (more than 2.5 months ago) but for the Applicant’s application to adjourn the hearing by reason of his outstanding legal aid appeal.  Because of the pending legal aid appeal, the JR Application has not been re-fixed for hearing at this stage.

(3)  Mr Li points out that the Applicant was legally represented in the second habeas corpus application (by counsel and solicitors) and in the current application (by 2 counsel and solicitors), but applied for legal aid in respect of the JR Application.  I am prepared to assume in the Applicant’s favour that his financial conditions are such that while he is able to afford legal representations in relation to the second habeas corpus application and the current application (maybe with financial assistance from relatives and friends), he is unable to do likewise in respect of the JR Application.  It remains a fact, however, that the delay in the progress of the JR Application was partly caused by the Applicant. The same comment applies with greater force in respect of the progress of the Petition.

49.Second, as mentioned in the decision in the second habeas corpus application, at §§27-29, the court accepts the Secretary/Director’s assessment that if the Applicant is released, he may abscond and/or reoffend, and pose a threat or security risk to the community, even though the risk of absconding may be somewhat militated by the existence of family connections in Hong Kong (§30).  In my view, the risk of reoffending of a serious nature is not low, given the number of serious criminal offences in Hong Kong that the Applicant has committed and been convicted of over the years since he first came to Hong Kong, including offences committed while he was on recognizance.

50.Mr Parker argues that the purpose of immigration detention is to effect removal, not to protect the public.  This is an “over-simplistic” statement.  In R(A) v Secretary of State for the Home Department [2007] EWCA Civ 804, at §55, Toulson LJ said: “Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure.”  Also, in R(Lumba) v Secretary of State for the Home Department [2012] 1 AC 245, at §121, Lord Dyson JSC said: “The risks of absconding and reoffending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place.” [emphasis added]

51.Third, the obstacle which stands in the path of the Secretary/Director preventing the Applicant’s removal is his outstanding JR Application.  As earlier noted, the Applicant is responsible for at least a part of the delay towards final resolution of his non-refoulement claim.

52.I have also considered various matters relied upon by Mr Parker in support of the Applicant’s release:

(1)  In respect of the Applicant’s complaints regarding the conditions of his detention, I take into account the counter-evidence contained in the Affidavit of Chan Wan Chung.  I believe that one has to be realistic about the living conditions in a detention centre, and do not consider that the complaints raised by the Applicant are such as would significantly affect the assessment of whether the period his detention has become unreasonable.

(2)  I am not prepared to attach much weight on his allegations regarding the effect of his detention on his family members, or the fact that his release is supported by many friends or some organizations.

(3)  In so far as the effect of the detention on the Applicant himself is concerned, I accept the evidence of Chan Wan Chung that proper medical care and attention is available to the detainees, including the Applicant, in CIC.

53.Mr Parker argues that in considering the reasonableness of the period of the Applicant’s detention, one may take into account his previous detention between 2003 and 2004 (referred to in §§10-13 above) (see R(M) v Secretary of State for the Home Department [2009] EWHC 629 (Admin), at §21 per Cranston J).  In my view, the relevance of an earlier detention depends on the facts and circumstances of the case in question.  In the present case, the earlier detention occurred some 14 to 15 years prior to the current detention which commenced in 2018.  The Applicant was in fact released on recognizance in November 2004, but came under immigration detention again because he committed further offences while on recognizance.  In these circumstances, I do not consider that much, if any, weight can be given to the Applicant’s previous detention between 2003 and 2004 in the assessment of whether the period of his current detention has become unreasonable.

54.Finally, Mr Parker has referred to many decisions in the UK and Hong Kong where a detention for a shorter, or significantly shorter, period than 30 months was held to be unreasonable.  It is not with disrespect that I do not propose to consider those decisions in detail.  As I see it, once the relevant principles have been correctly ascertained, their application to the particular facts of any given case is of little assistance for the purpose of determining whether the period of detention in the present case has become unreasonable.

55.On the other hand, there is no evidence to show that the Secretary/Director have failed to exercise reasonable diligence and expedition to overcome the aforesaid obstacle preventing the Applicant’s removal from Hong Kong.

56.Overall, I do not consider that the Applicant’s detention has gone on for a period which has become unreasonable.

GROUND (1): WHETHER REMOVAL CAN BE EFFECTED WITHIN A REASONABLE TIME

57.I can deal with this ground briefly.  As earlier mentioned, the obstacle to the Applicant’s removal from Hong Kong is the outstanding JR Application.  As a matter of fact, the JR Application was ready to be heard in December last year, and would have been heard and probably disposed of by now but for Applicant’s application to vacate the hearing date due to his outstanding legal aid appeal.  The Applicant has not suggested that the legal aid appeal is not itself ready to be heard.  The original hearing date of the legal aid appeal was vacated, apparently because of the need to fix a longer time slot due to the fact that the Applicant became legally represented and, apparently, had put forward some substantive grounds of appeal.  In order to avoid any further delay, I direct that:

(1)  a copy of this decision shall be sent to the Registrar so that he may consider, in his discretion, fixing an early date for the hearing of the legal aid appeal; and

(2)  the JR Application shall be fixed for hearing as soon as the Applicant’s legal aid appeal shall have been determined by the Registrar and the earliest practicable date shall be given for the hearing of the JR Application.

58.Mr Parker argues that it is logically impossible to say that removal is possible within a reasonable time when the Director has not attempted to identify, even by way of an estimate or range, when the Applicant is likely to be removed.  I do not consider that it is necessary to pin point a specific date or range of dates on which the Applicant is likely to be removed before one can conclude whether it is possible for the Applicant to be removed within a reasonable period of time.  Given the directions mentioned in §57 above, I see no reason why the legal aid appeal and the JR Application cannot be disposed of within a reasonable period of time.

59.In all, I consider that it is reasonable to take the view that, subject to the outcome of the JR Application, the Applicant can be removed before the expiry of a reasonable period of detention.  In any event, it has not become apparent that the Secretary/Director will not be able to effect removal within that reasonable period.

DISPOSITION

60.The application for a writ of habeas corpus, or an order for the Applicant’s immediate release, is dismissed, with costs to the Secretary for Security and Director of Immigration, including the costs of the hearing on 12 March 2021, to be taxed if not agreed.

61.The Applicant shall have liberty to apply for directions regarding how the rest of the matters raised in his Form 86 shall be dealt with.

Mr Tim Parker and Mr Josh Baker, instructed by Mohnani & Associates, for the Applicant

Mr Sunny Li, Senior Government Counsel, of Department of Justice, for the 1^st and 2^nd Putative Respondents