Husseini Yawuza v. Director of Immigration

HCAL 1548/2021

[2021] HKCFI 3442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1548 OF 2021

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Before: Hon Coleman J in Court

Dates of Hearing: 17 and 26 November 2021

Date of Judgment: 30 November 2021

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J U D G M E N T

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A.   Introduction

1.The Applicant is a Ghanaian national, and he is currently detained in the Tai Tam Gap Correctional Institution.  By Application and affidavit dated 21 October 2021, the Applicant applied for a writ of habeas corpus ad subjiciendum.

2.On 11 November 2021, I directed the application to be heard inter partes, and fixed the date for 17 November 2021. It was upon receipt of that direction that the Respondent (“Director”) came to know of the present application.  However, at the hearing, the Applicant indicated that he needed further time to review the materials provided on behalf of the Director, and that he might wish to adduce further materials himself.  In the circumstances, I adjourned the hearing until 26 November 2021.

3.The Applicant appeared in person.  The Director was represented by Mr Felix Lee, Government Counsel.  Mr Lee has provided a chronology and skeleton submissions to inform the Court as to the background facts, and to address the applicable legal principles.  There is also a bundle of supporting documents underpinning various aspects of the chronology.

B.   Basis of Application

4.The writ contains some personal background and information given about the Applicant by himself, as follows:

(1)  He is 34 years of age, and was educated up to lower secondary level in Ghana.

(2)  He arrived in Hong Kong in 2009 by boat from Shenzhen.

(3)  His wife is a Hong Kong resident and a teacher in Hong Kong.

(4)  He married his wife in 2015, after being in a stable and steady relationship with her for 4 years (so, it seems, from around 2011).

(5)  They have three children: a girl aged 9 years, a boy aged 6 years, and a girl aged 10 months.

(6)  He and his wife have been trying to make a normal life for their children.  He is a hands-on father, supporting his wife in her career.  His wife is suffering physically and mentally from having to care for the children alone, whilst he is detained.

(7)  Despite previous convictions, his wife has been a positive influence on his life, and he has changed his life after meeting his wife.

5.The relevant facts/reasons said to support the basis of the Applicant’s application are described by him in his affidavit as follows (sic):

No One Shall Be Subjct to Arbitrary Detention. And Primarily To Focus On Article 3, Section 8 OF The Hong Kong Bill Of Rights Ordinance, Chapter 383, Which States That:

“No Torture or inhuman Treatment and no experimentation without Consent.”

“No One Shall Be Subjected To Torture, or cruel, Inhuman or degrading treatment or Punishment. In Particular, No One Shall be Subjected without his Free Consent to medical or Scientific experimentation.”

a.  The Director/Secretary erred in considering my removal is going to be possible, And failed to tell me the exact date.

b.  The Director/Secretary failed to considered that I am a married man and a father of three (3) children And therefore I am not a threat/security risk to the Community Community.

c.  My Chances of absconding is remote for have been reporting regular Since 2009 to 2019, And that my chances of re-offending is also remote.

d.  The Director/Secretary failed to considered the fact that I have close connection and fixed abode in Hong Kong.

e.  Further the director has failed to attain the high Standard of fairness required in the decision with the arguments Put forward above.  As such, the decision of the director/secretary should be considered unreasonable in the scope of Public Law.

f.  The director/Secretary failed to consider my request to be release on recognizance.

1.  To Gather more evidence for the Judicial review in support of my claim. And to get me a legal representative.

2.  To help my wife on Parental duties.

The Director/Secretary made a review of detention to dismiss my request, and thus the decision was irrational.

I humbly as this Honorable Court to Kindly grant me leave to be re-unite with my family and to gather my evidence for the Judicial Review and to get me a legal representative for my Judicial Review hearing.

6.Hence, in addition to the suggested failures on the part of the Director, the Applicant chiefly relies on (1) his desire to gather evidence for his judicial review application relating to his non-refoulement claim (see below) and (2) his desire to be re-united with and to assist his family in Hong Kong.

7.At the hearing, the Applicant supplemented these points orally, as I shall set out below.

8.The Applicant also stated that he wished to rely on medical reports to be prepared by a psychiatrist, but had been advised it would take 5 to 6 weeks to obtain such evidence both as to his own condition and that of his wife.  Nevertheless, even without that information, the Applicant made clear that he wished to proceed with the application.

9.At the end of the hearing, I reserved my decision.  Now, having further considered the application in the light of the materials as updated, and the oral submissions, this is my Judgment.

C.   Background Facts

10.There is a long history to this matter, which provides the context for the subsequent consideration.  The background facts can be summarised as follows.

11.On 29 July 2009, the Applicant was arrested by the Police for being a suspected illegal immigrant.  The Applicant was transferred to the Immigration Department (“ImmD”) and detained on 31 July 2009 under section 26(a) of the Immigration Ordinance Cap 115 (“Ordinance”) for inquiry.

12.On 1 August 2009, the Applicant was detained under section 32(1)(a) of the Ordinance pending his removal.  On the same day, the Applicant indicated his intention to lodge a non-refoulement/torture claim.  But, on 14 September 2009, the Applicant was released on recognizance.

13.On 19 December 2012, the Applicant was convicted of the offence of trafficking in dangerous drugs and was sentenced to 4 months’ imprisonment.  On 18 January 2013, the Applicant completed his sentence and was discharged from prison.  He was transferred to the ImmD and was detained under section 32(2A) of the Ordinance pending a decision as to whether a removal order should be made against him.

14.On 4 February 2013, a removal order (“RO”) was made against the Applicant, and he was then detained pursuant to section 32(3A) of the Ordinance pending his removal from Hong Kong.  But, on 18 February 2013, the Applicant was released on recognizance.

15.On 28 February 2013, the Applicant’s torture claim was treated as withdrawn as he had failed to return a completed torture claim form within the prescribed time limit.

16.On 28 June 2013, the Applicant was convicted of the offence of possession of a dangerous drug and was sentenced to 4 weeks’ imprisonment suspended for 30 months.

17.On 19 May 2014, the Applicant indicated his intention to lodge a non-refoulement claim by a written signification.  The essence of the Applicant’s claim was that, if refouled, he would be harmed or killed by a Group of people in Ghana, or be the subject of the Group’s curse or hex, because he failed to fulfil his commitment to sacrifice a member of his family to the Group in a spiritual ceremony.

18.On 30 March 2015, the Applicant was convicted of the offence of inflicting grievous bodily harm and was sentenced to 2 years’ imprisonment, which activated the suspended sentence of 4 weeks’ imprisonment of his previous conviction which was to run consecutively, making a total sentence of 2 years and 4 weeks’ imprisonment.  On 22 July 2016, the Applicant completed his sentence and was discharged from prison.  He was transferred to the ImmD and was detained under section 32(3A) of the Ordinance pending removal.

19.Once again, on 31 August 2016, the Applicant was released on recognizance.

20.On 27 February 2018, the Applicant’s non-refoulement claim was refused by the Director.  On 13 March 2018, the Applicant lodged an appeal/petition against the Director’s decision with the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”).

21.The Board later dismissed the appeal/petition on 24 July 2019.  The Board evaluated the Applicant’s evidence against his oral testimony, but did not accept the Applicant’s story.  Rather, the Board found that the Applicant had manufactured his claims for non-refoulement protection whilst in Hong Kong, and did not accept that any curses had caused deaths to his family members or might have any effect on him.  As a result, the Board was not satisfied there was a real risk or substantial strong grounds for believing that he would suffer harm if he returned to Ghana.

22.On 2 August 2019, a letter was sent by the ImmD to the Embassy of the Republic of Ghana for the purposes of initiating deportation order proceedings and repatriation.

23.On 19 November 2019, the Applicant failed to report recognizance and absconded since then.

24.On 5 June 2020, the Applicant was arrested by the Police for being a wanted person who had failed to report recognizance.  He was referred to the ImmD for detention under 32(3A) of the Ordinance.

25.On 18 June 2020, the Applicant filed an application for leave to apply for judicial review against the Board’s Decision under action number HCAL 1226/2020 (“JR Leave Application”).  The application was filed late.

26.On 7 July 2020, the Applicant was arrested for the suspected offence of arson at the Castle Peak Bay Immigration Centre (“CIC”) during his detention there.  He was convicted of arson on 26 February 2021 and was sentenced to 11 months and 14 days’ imprisonment.  On 27 March 2021, the Applicant completed his sentence and was discharged from prison.  He was transferred to the CIC for detention under section 32(3A) of the Ordinance.  A Notice of Detention and a Notice on Detention Policy were served on him on the same date.  The detention has continued until now.

27.On 24 May 2021, the ImmD conducted an interview with the Applicant.  During the interview, the Applicant stated in writing, among other things, that he failed to report recognizance on 19 November 2019 because he did not have money for transportation.

28.On 27 May 2021, it was decided to continue to detain the Applicant after a review of detention of the Applicant under section 32(3A) of the Ordinance conducted by the Director on the grounds that:

(1)  the Applicant’s removal is going to be possible within a reasonable time;

(2)  the Applicant may constitute a threat / security risk to the community;

(3)  the Applicant may abscond and/or re-offend; and

(4)  there are no other circumstances in favour of the Applicant’s release.

29.On 3 June 2021, the Applicant was transferred from CIC to TGCI for detention.  On 18 June 2021, a Notice of Review of Detention was served on the Applicant.

30.On 4 August 2021, a chaser letter was sent to the Embassy of the Republic of Ghana for the purposes of initiating deportation order proceedings and repatriation.

31.On 6 August 2021, the latest version of Notice on Detention Policy after the amendment of the Ordinance on 1 August 2021 was served on the Applicant.

32.On 19 August 2021, it was decided to continue to detain the Applicant on the same grounds as those relied on in the first review as stated above, after a review of detention of the Applicant under section 32(3A) of the Ordinance conducted by the Director.

33.On 10 September 2021, a Notice of Review of Detention was served on the Applicant.

34.On 19 October 2021, the Registrar of the High Court sent a letter to the ImmD asking for the Applicant’s latest address so that his JR Leave Application could be processed promptly.  On 25 October 2021, the ImmD replied to the Registrar of the High Court providing the Applicant’s latest address.

35.In between those two dates, as stated above, the Applicant launched this application for habeas corpus on 21 October 2021.

36.On 10 November 2021, a review of the detention of the Applicant under section 32(3A) of the Ordinance was conducted by the Director.  It was decided to continue to detain the Applicant on the same grounds as before.

37.On 12 November 2021, a Notice of Review of Detention was served on the Applicant.

38.On 16 November 2021, DHCJ KW Lung dismissed the Applicant’s JR Leave Application: see [2021] HKCFI 3342.  In his reasons at §§16-18, the Deputy Judge stated that (1) the Applicant had submitted no valid ground to assist his application; (2) the Board had rejected his evidence on the facts, and therefore there was no factual basis in support of his claim; and (3) further, there was no error of law or procedural unfairness in the Board’s decision, which was also not open to challenge as Wednesbury unreasonable or irrational.  There being no evidence showing that the Applicant had any realistic prospect of success in the intended judicial review, the Deputy Judge also refused to extend time for the application.

39.At the hearing on 17 November 2021, the Applicant indicated that he had not yet received the Deputy Judge’s decision, but would likely appeal from the refusal of his JR Leave Application.  I arranged for the Applicant to be provided with a copy of the decision.

40.Also on 17 November 2021, the ImmD wrote to the Embassy of the Republic of Ghana in Beijing, notifying the intention to deport the Applicant back to Ghana, and seeking the issue of a replacement travel document to him to facilitate that deportation.  By email of the same date, a consular official at the Embassy acknowledged receipt of that letter and stated that the Embassy would be available to the detainee (the Applicant) to try and establishes nationality whenever he is ready to talk to them.

41.On 18 November 2021, an in-person interview was conducted with the Applicant.  He expressed his strong unwillingness to return to his own country, and his intention further to appeal the refusal of his JR Leave Application.  He refused to fill in the application form for re-entry seeking and a consent form for release of information, showing reluctance for the phone interview with the Embassy of Ghana for the purpose of verification of his identity as Ghana national.  The latest case status and detention policy were explained to him, and he was informed that his detention would be kept under regular review and would be reviewed when there was a material change of circumstances.

42.On 23 November 2021, the ImmD wrote a further letter to the Embassy of the Republic of Ghana, again seeking assistance in issuing a replacement travel document to the Applicant, and seeking enlightenment on possible alternative means to confirm his identity regardless of his uncooperative attitude.

43.Also on 23 November 2021, the Applicant filed a Notice of Appeal from the refusal of his JR Leave Application.  (This fact was only made known by the Applicant at the oral hearing, and the Director was previously unaware of the fact.  The precise basis of any intended appeal remain unclear.)

44.On 24 November 2021, the ImmD conducted the 4^th Review of the Applicant’s detention under section 32(3A).  After consideration of all the circumstances, releasing the Applicant on recognizance was not recommended, for the same grounds as previously.  Notice of Review of Detention was provided to the Applicant on the same date.

45.The Applicant’s further oral submissions can be summarised as follows:

(1)  the reason why there appears to be a discrepancy or inconsistency between reasons given for his failure to report recognizance is because the reason written down as explanation for the ImmD was instructed or recommended by immigration officers, whereas other documents consistently make clear the reason was the result of a misunderstanding;

(2)  there is no reason to think that he remains a security risk, as he is not a threat to anyone in Hong Kong;

(3)  indeed, though he has a conviction for assault occasioning grievous bodily harm, that was really an impulse or self-defence when he was himself under attack, but unfortunately the trial judge convicted him as charged;

(4)  he has learned his lesson, and this is not a case where he will re-offend or threaten anyone;

(5)  he has now filed an appeal in relation to the JR Leave Application, and so removal is not possible within a reasonable time;

(6)  in any event, he faces real problems if he has returned to Ghana, so that he will pursue his appeal rights, if necessary perhaps to the Court of Final Appeal;

(7)  his wife is suffering, having to try to care for their three children without his assistance – she is seeking psychiatric assistance and taking anti-depression medication;

(8)  the detention is really affecting his family badly, and affecting the safety and security of his family (shown, for example, by his daughter perhaps having to go to the supermarket to shop on her own).

46.In his oral submissions, Mr Lee acknowledged that the fact that the Applicant has now filed an appeal in relation to his non-refoulement claim means that there is now a legal impediment upon removal.  Nevertheless, the Director maintains his overall position, albeit that some of the matters ticked as applicable in the Notice of Review of Detention dated as recently as 24 November 2021 were no longer applicable.  In particular, Mr Lee accepted that the following factors were no longer applicable:

(1)  Box 1. ‘Your removal from Hong Kong is imminent and/or immediate repatriation is being arranged for your departure.’

(2)  Box 4. ‘You have no outstanding claim impeding removal.’

(3)  Box 5. ‘You have no outstanding legal proceedings e.g. petition/appeal/judicial review impeding removal.’

47.Further, Mr Lee noted that Box 20. ‘You have directly or indirectly prevented or delayed your removal by any action or lack of action’ was at least less applicable, because the Applicant’s uncooperative attitude would not in practical terms have immediate impact.

48.Mr Lee also accepted that the change of circumstances since the last review would likely require a further review in the near future.

D.     Applicable Legal Principles

49.The principles applicable to an application for the issue of a writ of habeas corpus are well-settled.  They were recently summarised by Chow J (as he then was) in Simona Mundia v Director of Immigration [2020] 2 HKLRD 1205, at §§14, 17-20, 24 and 27.

50.The purpose of an application of habeas corpus 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.  Rather, the central question is whether there is lawful authority for a detention.

51.However, an initially lawful detention may be turned into an unlawful detention if it fails to meet the ‘Hardial Singh principles’ set out in R v Governor of Durham Prison, ex parte Hardial Singh as summarised in R(I) v Secretary of State for the Home Department [2003] INLR 196 (at §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 §23), broken down into the following points:

(1)  The Director must intend to deport the person and can only use the power to detain for that purpose;

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

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

(4)  The Director should act with reasonable diligence and expedition to effect removal.

52.The burden of demonstrating the detention (and the continuation of it) as lawful rests on the respondent to the application for habeas corpus.

53.The Director has a discretion in respect of the continued detention of a person pending his deportation.  Because ‘pending deportation’ means no more than ‘until deportation’, and as long as the Director intends 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.

54.A review of what might be regarded as a reasonable length of period of the 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; and (g) the danger that, if released, he will commit criminal offences.

55.Further, on 1 August 2021, a statutory amendment created section 32(4A) of the Ordnance, to stipulate circumstances under which the length of detention would be considered as reasonable and lawful.  The purpose of the amendment is to conform to the Hardial Singh principles, and to enhance transparency and unequivocal legal support to immigration officers in considering and determining the appropriate detention period.  Sub-section 32(4A) provides as follows:

(4A)  The detention of a person under this section shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including, in the case of a person being detained pending removal from Hong Kong—

(a)  whether the number of other persons pending removal from Hong Kong is such that it is reasonable to take the time it is taking, or has taken, to remove the person;

(b)  whether the manpower and financial resources allocated for the removal of persons from Hong Kong under this Ordinance are such that it is reasonable to take the time it is taking, or has taken, to remove the person;

(c)  the extent to which it is possible to make arrangements to effect the person’s removal;

(d)  whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, including the person not obtaining, or not providing assistance to obtain, any authorization from the relevant authorities of a place outside Hong Kong that is required for the person’s entry to that place;

(e)  the time required for the issue of the authorization referred to in paragraph (d);

(f)  whether the person poses, or is likely to pose, a threat or security risk to the community; and

(g)  factors that directly or indirectly prevent or delay the person’s removal that are not within the control of the Director.

E.    Is the Applicant’s Continued Detention Lawful?

56.The Applicant is currently detained under section 32(3A) of the Ordnance, which provides as follows:

A person in respect of whom a removal order under section 19(1)(b) is in force may be detained under the authority of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration pending his removal from Hong Kong under section 25.

57.At the time when the RO was made against the Applicant, detention under section 32(3A) of the Ordinance was authorised by an Assistant Director of Immigration.  Both the RO and the authorisation for detention under that section have remained in force against the Applicant since that time.

58.Therefore, there is apparent lawful authority to detain the Applicant pending removal.

59.As to whether the detention has remained Hardial Singh compliant and lawful, Mr Lee makes various submissions, which I summarise as follows:

(1)  The Director has throughout exercised due diligence to effect the Applicant’s removal, taking various steps which identify acting with reasonable diligence or expedition to effect the removal (see above chronology).

(2)  The JR Leave Application – the timing of which is outside the control of the Director – was anticipated soon to be disposed of (and, in fact, it has now been disposed of by its dismissal).

(3)  The merits (or anticipated merits) of the judicial process pursued by the detainee which impedes his removal is relevant consideration, and the Director considered the JR Leave Application to be a weak one, without good prospect of success (as has turned out to be correct).

(4)  The other relevant principles have been complied with, specifically in light of the security risk posed or likely to be posed by the Applicant.

(5)  The risk of absconding is important, because it threatens to defeat the purpose for which the deportation order was made.

(6)  A risk of offending if the person is not detained is an additional relevant factor, the strength of which depends on the magnitude of risk (meaning both the likelihood of occurrence and the potential gravity of the consequences).

(7)  The Director is much better placed than the Court to consider matters such as the risks of absconding or re-offending, and whether a detainee, if released, may pose a threat or security risk to the community.  Those issues are fact sensitive and involve a broad range of considerations, in areas on which the Court is entitled to place weight on the Director’s assessment: see Harjang Singh v Secretary for Security [2019] HKCFI 1486 at §29.

(8)  The Applicant is a repeated offender of serious crimes, including arson, inflicting grievous bodily harm and trafficking in dangerous drugs.

(9)  The Applicant was an absconder, has offered inconsistent explanations as to why he failed to report recognizance, and even ignoring those explanations the fact is he absconded.

(10)  The Applicant’s desire to reunite with his family in Hong Kong has been considered by the Director, and has been decided not to outweigh the other factors, including the security risk posed and that the removal is going to be possible within a reasonable time.

(11)  Hence, the Director’s decision is reasonable under the Ordinance and under common law.

60.I accept the real force in those submissions. In addition, by reference to the specific matters raised by the Applicant in support of his application, the following can be said:

(1)  I do not think it is unreasonable for the Director to consider removal of the Applicant as possible, even if it is not yet possible to give the Applicant any exact date.

(2)  The Director has considered the fact that the Applicant has a close connection and fixed abode in Hong Kong, but has decided those factors are outweighed by other factors.  I do not think the weighing exercise is obviously unreasonable.

(3)  The Director is entitled to be sceptical of the Applicant’s suggestion that the chance of absconding is remote, when the Applicant has apparently given different and inconsistent explanations as to why he failed to report recognizance in 2019.  On the other hand, proper weight must be given to the fact that the Applicant does have local connections and a fixed abode in Hong Kong.

(4)  The Director is also entitled to be sceptical of the Applicant’s suggestion that the chances of his re-offending are also remote.

(5)  The Applicant’s statements in the writ that his wife is a positive influence on him, and that he has changed his behaviour since meeting her, are not necessarily fully supported by the facts.  The Applicant says that he was in a stable relationship with his wife from about 2011 and they married in 2015.  However, he was convicted: (1) in December 2012 of trafficking dangerous drugs; (2) in June 2013 of possession of a dangerous drug; (3) in March 2015 of inflicting grievous bodily harm; and (4) in February 2021 of arson.  But I suppose it might be said that after the date of marriage there was a gap until the last conviction in 2021.

(6)  I also note that though the Applicant stated the intention to claim non-refoulement protection upon his arrival in Hong Kong in 2009, it was apparently not an application which was made and pursued with vigour until several years later.

(7)  The Director has necessarily considered whether or not to release the Applicant on recognizance, but on balance has decided to maintain the detention pending removal.

(8)  The Director is reasonably entitled to form the view that there was no purpose for such a release if it was to gather evidence for the JR Leave Application.

(9)  The Applicant has been in current detention under section 32(3A) for several months since completing his last prison sentence – a total of 236 days since 27 March 2021 up to the date of the first hearing, and 245 days until the second hearing.  This is not an insubstantial period, and he has spent other earlier periods in detention as shown above.  But, whether the length of detention is or has become unreasonable is impacted by the other factors to be taken into account.

(10)  Further, the Applicant would have been removed much earlier but for his appeal/petition to the Board against the Director’s decision rejecting his non-refoulement claims and his JR Leave Application in HCAL 1226/2020.  Whilst the Applicant is entitled to exhaust all administrative, statutory and/or judicial remedies against the Director’s rejection of his non-refoulement claims, the inevitable consequence is that such pursuit would become impediments preventing his immediate removal.

(11)  Further, it lies ill in the mouth of the Applicant to complain of such part of the continued detention as is referable to his uncooperative attitude and his failure or refusal to engage with the Embassy of the Republic of Ghana (though the immediate impact of that attitude is lessened where there is now a legal impediment to removal).

61.In the circumstances, I do not think it correct for the Applicant to suggest that the Director has failed to attain the high standard of fairness required, or that the Director’s decision was unreasonable in the public law sense, or that it was irrational.  But, in any event, the purpose of this application is not to determine the reasonableness of the detention decision.  Instead, the central question is whether there is lawful authority for the detention.

62.There is nothing in the materials before the Court to show that the Director is using the power of detention for any purposes other than for the removal of the Applicant.  There is also nothing to suggest that the Director has failed to act with reasonable diligence or expedition to effect the Applicant’s removal.  The obstacle to the Applicant’s removal caused by his pending JR Leave Application was removed (though it has now returned because of the application for leave to appeal).  The obstacle to the Applicant’s removal caused by his passport having expired is removable if the Applicant himself cooperates, and I do not think he can rely on a self-imposed obstacle: see section 32(4A)(d).  The Director is intent upon removing the Applicant at the earliest moment, and is of the view that the Applicant can be removed within a reasonable period of time and that it will not be impossible to do so.

63.Up to the date of this application, I do not think that the Applicant has already been detained for an unreasonable period of time, nor is there was there no realistic prospect that the Applicant could be removed within a reasonable time.

64.The content of the internal documents identify that the Director was fully aware of the position of the Applicant’s wife, who was in frequent contact by letter and by telephone call.  However, the Director has decided that those matters do not outweigh the other factors, including the security risk posed and that the removal is going to be possible within a reasonable time.  Therefore, whilst I acknowledge that the persons who might most suffer from the continued detention of the Applicant might be his wife and his children, I do not think that unfortunate fact, nor the Applicant’s stated desire to be reunited with and to assist his family, render the otherwise lawful detention up to this point somehow unlawful.

65.Having said that, the Director will need to continue to review the detention, not least in light of the acknowledged removal of certain factors previously identified as the partial basis of the decision to continue detention.  It is also a truism that the longer the period of detention, the more possible it is that the overall balance will shift, so that an initially lawful detention may be turned into an unlawful detention.

66.As I have already noted, a review of what might be regarded as a reasonable length of period of the detention will include at least the length of the period of detention itself, the nature of the obstacles which stand in the path of the Director preventing a deportation, and the effect of detention on the Applicant and his family.

F.     Result of Application

67.In short, I accept that the Applicant’s detention is under lawful authority and it is Hardial Singh compliant, so remains lawful.  I am of the view that the Applicant has not been detained for a period that is unreasonable in all the circumstances.

68.Therefore, the application for the writ of habeas corpus is dismissed.

69.The Applicant has the benefit of knowing that his continued detention will be subject to early review in light of the circumstances.  It is not appropriate for the Court to second-guess the outcome of such review – and the Director is perhaps better placed to consider fact sensitive matters such as the risks of absconding or re-offending, and whether a detainee, if released, may pose a threat or security risk to the community – but Mr Lee has rightly accepted that the burden of demonstrating the continuation of detention as lawful in all the circumstances would rest on the Director.

70.Mr Lee has sought the Director’s costs.  He has done so on the authority of Tong Ying Kit v HKSAR (No 2) [2020] 5 HKLRD 395.  That case establishes that, whilst there is no general or prima facie rule that costs order should be made against an unsuccessful habeas corpus applicant, the court has a discretion to be exercised judicially on whether a costs order should be made, depending on the facts and circumstances of the case.  He has pointed to certain factors which he says make this a case suitable for the award of costs to the Director.

71.But, in all the circumstances of this case, and in the exercise my discretion, I make no order as to costs.

The applicant, acting in person

Mr Felix Lee, Government Counsel, of Department of Justice, for the putative respondent