Muzammel Hoque v. Hong Kong Sar Government

HCAL 44/2022

[2022] HKCFI 384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 44 OF 2022

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D E C I S I O N

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A. Introduction

1.By Form 87 dated 11 January 2022, the Applicant seeks a writ of habeas corpus ad subjiciendum, on the basis that his continued detention at Tai Tam Gap Correctional Institution (“TGCI”) is unlawful.

2.Though the title of these proceedings names the HKSAR Government as the respondent, I have assumed the true or better respondent is the Director of Immigration (“Director”), on whose order the Applicant is currently detained.  Therefore, albeit that no specific ground is stated in the Form 87, the burden of satisfying the continued lawfulness of the detention falls on the Director in this case.  I gave directions for this matter to be dealt with today, with the benefit of prior written submissions from the Director.

3.The Applicant is currently in detention, pending his removal from Hong Kong, pursuant to the power of the Director to detain him under section 32(3A) of the Immigration Ordinance.  All references in this Decision to sections of an Ordinance are to sections of that Ordinance.  The relevant period of detention commenced on 21 November 2020, some 14 months or so ago.

4.The applicant appears in person.  The Director is represented by Mr Sunny Li, Senior Government Counsel.  The Director has also helpfully provided a bundle of background documents which underpin the facts stated in the following background and chronology.

5.Having heard the application this morning, this is my Decision.

B.      Factual Background

6.The Applicant is a Bangladeshi national.

7.The Applicant arrived in Hong Kong on 19 September 2007, on the strength of his own Bangladeshi passport.  He was given a visa with limit of stay until 3 October 2007.

8.However, he has overstayed since 4 October 2007.

9.On 21 October 2007, the Applicant was arrested on suspicion of overstaying.  Shortly thereafter he was referred to the Immigration Department for handling.  Whilst in detention, on 31 October 2007, the Applicant asserted that he did not want to go back to Bangladesh because his life was not safe and he would lodge a torture claim.  He was released on recognizance on 10 November 2007.

10.On 19 September 2012, a removal order was issued against the Applicant.

11.On 21 February 2013, the Applicant was arrested for the offence of common assault, and on 28 February 2013, the Court ordered the Applicant to be bound over for one year.

12.On 12 September 2013, the Applicant was fined $1,000 for possession of a dangerous drug.

13.On 24 December 2014, the Applicant’s non-refoulement claim (“NRC”) was refused by the Director on the grounds of torture, BOR 3 and persecution.  On 7 January 2015, the Applicant lodged an appeal/petition against that refusal to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”).

14.On 14 January 2015, the Consulate General of the People’s Republic of Bangladesh was asked to issue a replacement travel document to the Applicant to facilitate his subsequent repatriation.

15.On 2 May 2017, the Applicant was invited to submit any additional facts he considered relevant to his NRC on all applicable grounds for non-refoulement protection, such as BOR 2 risk. The letter was copied to the Duty Lawyer Service.  After the deadline set, the Applicant’s NRC was refused additionally on BOR 2 risk, by a decision made on 22 May 2017.

16.On 24 January 2018, the Applicant was arrested for trafficking in a dangerous drug.  On 6 December 2018, the Applicant was convicted of that offence.  On 23 January 2019, the Applicant was sentenced to 51 months’ imprisonment for that offence.

17.On 12 March 2019, the Applicant’s appeal/petition to the Board was dismissed on all applicable grounds.

18.On 20 December 2019, a ‘Notice of Consideration of Deportation’ and ‘Explanatory Note’ were served on the Applicant and explained to him with the assistance of an interpreter.  He stated grounds against deportation as follows: “I object the deportation order.  I acknowledge that all of my non-refoulement claim and appeal have been refused.  I will apply for JR as soon as possible.  I want to wait for result in Hong Kong.”

19.On 6 January 2020, the Consul General of the People’s Republic of Bangladesh was asked to confirm the Applicant’s re-entry to facilitate the deportation order proceedings.

20.On 21 November 2020, the Applicant completed his sentence.  Upon discharge from prison, he was referred to the Immigration Department, and has since then been detained under section 32(3A). As already stated, this period of detention of, now, about 14 months is the period relevant for present purposes.

21.On 24 November 2020, a further letter was sent to the Consulate General of the People’s Republic of Bangladesh, seeking issue of a replacement travel document to the Applicant and confirmation of his re-entry to Bangladesh, to facilitate deportation.

22.On 14 December 2020, the Applicant’s solicitors wrote to the Immigration Department, stating that the Applicant had filed an application for leave to apply for judicial review against the decision of the Board, in proceedings HCAL 2440/2020 (“JR Leave Application”).  The letter also requested the Applicant to be released on recognizance, on the basis that his continued detention was against the principles of Hardial Singh and unconstitutional.  It can be noted that the proceedings were commenced significantly out of time, more than 21 months after the decision of the Board.  It can also be noted that though solicitors were instructed to write to the Immigration Department, they had not drafted the JR Leave Application itself, and they were essentially instructed for the purposes of asking for release on recognizance.

23.On 27 January 2021, 27 April 2021 and 22 July 2021, the Applicant’s detention was reviewed.  On each occasion, release on recognizance was not recommended.  On the last of those dates, in an interview with Immigration Department staff, the Applicant expressed willingness to return to Bangladesh.

24.On the following day, 23 July 2021, the Applicant’s application to withdraw the JR Leave Application (made by letter dated 7 July 2021) was granted.  From that date, 7 months ago, there has been no legal impediment to the Applicant’s removal.

25.On 3 August 2021, a chaser letter was sent to the Consulate General of the People’s Republic of Bangladesh.

26.Shortly thereafter, on 5 August 2021, the Applicant expressed in an interview his willingness to return to Bangladesh, and requested an update on the processing of his re-entry. Similarly, on 13 August 2021, 23 August 2021 and 1 September 2021, the Applicant expressed willingness to return to Bangladesh and enquired about his case progress.  Between those last two dates, on 28 August 2021, the Applicant was interviewed by a representative of the Bangladeshi Consulate General at the TGCI.

27.On 29 September 2021 and 28 December 2021, the Applicant’s detention was reviewed.  On both occasions, release on recognizance was not recommended.  Between those reviews, in interviews on 6 October 2021 and 8 December 2021, the Applicant expressed willingness to return to Bangladesh and enquired about case progress.  Between those two interviews, on 2 November 2021, the Applicant was interviewed by representatives of the Bangladeshi Consulate General at the TGCI.

28.Further letters were sent to the Consulate General of the People’s Republic of Bangladesh on 22 December 2021 and 12 January 2022.

29.On 19 January 2022, the local Consulate replied by email that the verification of the Applicant’s re-entry is underway.  Specifically, it informed that because the Applicant passport was bore a “non-MRP travel document” – which I assume to mean a non-machine-readable passport, as his previous passport expired in April 2009 – further security verification was required for such cases for re-entry to Bangladesh, and that the Consulate is waiting for the reports.  There is no indication as to when those reports might be expected or obtained.

C.      Applicant’s Submissions

30.In his affirmation filed in support of this application, the Applicants stated (sic):

Actually since 21-11-2020, I requested to the Immigration Officer for send me back to my country, but they didnt.  Also applied so many times for bail, but my case officer didnt Accept, over And over Rejected my bail, at that situation bay the phone I talked with my case officer And explained all my problems, until now I could not get any sufficient Answer, only the one answer to just wait And wait.  So I obliged to come to the court for Justice, for your kind information I want to go back my country how fast or soon, I really do not want to stay in Hong Kong, its Really very necessary to go back.  Cause of my family problems.

While I was out side in hongkong, I married with indonesian woman.  And we have one daughter.  2018 police arrested me since that time I am in prison.  After police arrested be my wife and daughter contect with my father.  And however they went to my father bangladesh, in my home country my father And my wife and daughter left.  There are no body Look After them.  I completted my sentence And came to cic on 21-11-2020.  While I wan in cic in a week I got news that my father passed Away.  Right now in family only my wife And daughter left.  And they do not speak bengali, so you could imagine how they suffering, also trust me I do not have any close Relative that they could help, being Long time in prison I losted all the contect that I could contect, I Really cannot Explain my sorrow And situation into word.

I mentally And physicaly Really very very upsed. Overall, my Situation Really very worse till now I havent get any signed to send me back so I therefore first beg your pardon And humbly Requesting you kindly grant my bail, that I could wait out side until depart From hongkong, also Sincerely Requesting you to inform my Case officer or immigration Authorities that as soon as possible semi back to my country, cause my wife And daughter suffering A Lot

31.At the hearing, and without need of an interpreter, the Applicant provided me with further written submissions so as not to have to explain matters orally.  Broadly, the additional matters in the written submissions can be summarised as follows:

(1)  The Applicant acknowledges his previous wrongdoing, and accepts that his punishment was appropriate.  The offence of trafficking drugs was committed because the Applicant mixed with people of bad character.

(2)  The Applicant’s wife and daughter used to live with the Applicant’s mother-in-law, but she unfortunately passed away following a tsunami.  That is why the wife and daughter subsequently went to live with the Applicant’s father in Bangladesh.

(3)  It was only very shortly after the Applicant completed his prison sentence and was moved to immigration detention that he learned that his father had passed away.

(4)  As there was no one else in Bangladesh who the Applicant could ask to look after his wife and daughter, the Applicant decided he would have to go to Bangladesh, even if there remains danger for him in that country.

(5)  When the Applicant spoke to a female immigration officer by phone, and asked her to send him back to Bangladesh urgently and as soon as possible, she told him that it was not possible as his passport had expired, and might take 4 to 5 months.

(6)  When the Applicant asked the immigration officer for bail until his departure from Hong Kong, she told him she had no reason to support bail because his torture claim had been refused by the Board.  The Applicant says that the officer suggested that he apply for judicial review, send her the JR number, and after that he might be granted bail.

(7)  That is why the Applicant made the JR Leave Application on 14 December 2020, to comply with the officer’s request.  In further compliance, the Applicant’s solicitors sent a copy of the application with the action number to the immigration officer, and asked for release on bail/recognizance.

(8)  The Applicant had not realised that the JR Leave Application would in fact hold up the departure process, and thought that he would simply withdraw the application after the deportation procedures had been finished.  Had he thought that delay would be caused, he would not have applied for JR, nor have hired the solicitors.

(9)  Only later, in a further conversation with case officer by phone about granting bail, the officer informed the Applicant that it could not be bailed and asked the Applicant withdraw the JR Leave Application, which he did.

(10)  However, the Applicant remains in detention, and he is unable to obtain clear information from the Immigration Department or the Consulate General of Bangladesh as to when he can go back to his country.

(11)  Whilst he remains detained, and because of his family situation, the Applicant is becoming psychologically and physically ill.  He is in despair, and begs for justice, to be granted bail, with the promise that he would fulfil any condition for the grant of bail.

32.Though given the opportunity to make any further oral submissions, the Applicant chose to rely on his written materials.  I have taken all these matters into account in reaching my decision.

D.      Applicable Legal Principles

33.The relevant legal principles governing an application of this nature are well-settled, and do not need to be traversed at any great length.  The core question is whether the detention is unlawful, which requires the Court to consider (1) whether the detention was made with proper legal authority, and if so (2) whether the continued detention remains lawful in compliance with the principles identified in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 as adopted in Hong Kong by the Court of Final Appeal in Ghulam Rbani v SJ for and on behalf of the Director of Immigration (2014) 17 HKCFAR 138 at §§21-25.

34.There are essentially four underlying principles, namely that: (1) the authority 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 authority will not be able to effect deportation within that reasonable period, the authority should not seek to exercise the power of detention; and (4) the authority should act with reasonable diligence and expedition to effect removal.

35.As to how long a period of detention is to be regarded as reasonable, there are a number of factors that can be taken into account and applied to the particular circumstances of each individual case. It is settled that the matters to consider include at least: the length of the period of detention; the nature of the obstacles standing in the way of deportation; the diligence, speed and effectiveness of the steps being taken to surmount such obstacles; the conditions in which the detained person has been 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.

36.Similar, albeit not exactly co-extensive, matters are stipulated in the new section 32(4A), which came into force in August 2021.  That subsection specifies that the detention under section 32 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 those matters set out in the subsection.

E.      Application of the Principles to this Case

37.As indicated above, the Applicant is detained under section 32(3A), following the making of the removal order against him.  That detention was authorised under the section by the Director.  As the removal order and authorisation have remained extant at all times during his detention, there is prima facie lawful authority to detain the applicant pending removal.

38.It is necessary, therefore, to consider whether the detention has remained lawful.  As to the four Hardial Singh principles (“HSP 1” etc), they are addressed in the following paragraphs.

39.HSP 1: After the removal of the legal impediment against removal, by the withdrawal of the JR Leave Application on 23 July 2021, the Director has plainly intended to remove the Applicant, and has made best efforts to seek appropriate travel documents from the Bangladeshi authorities.  In other words, the Director intends to deport the Applicant and is using the power to detain for that purpose.

40.HSP 2: The Director considers that the Applicant poses, or is likely to pose, a threat or security risk to the community, and that there is a risk of absconding or re-offending.  I agree that the Director can reasonably form that view in light of the Applicant’s prior drugs related convictions, and the admission by the Applicant (shown in the reasons for sentence for his second, trafficking, conviction) that he possessed cocaine to share with his friends.  Further, part of the period of detention – a period of around 7 months – was during the time when the Applicant filed his JR Leave Application, significantly out of time, but which was later withdrawn. It is also noticeable that the solicitors acting for the Applicant did not draft the application, but apparently were merely instructed to inform the Immigration Department that the application had been made, and to request the release on recognizance.

41.I have taken into account the further explanation given today as to why the Applicant made the JR Leave Application – that is, on the basis of what he says he was told by the immigration officer, and thinking it would help his chances of being released, and without realising it would hold up his desired repatriation.  But – even leaving aside the unlikelihood of an immigration officer telling a person requesting deportation that it would help if an application for JR were to be started – I also note that the explanation offered is not readily consistent with the record of interview (made with the benefit of interpretation) on 21 November 2020 which shows the Applicant already said he would make an application for JR and that he did not want to go back to Bangladesh.  He was objecting to deportation, and though that may have been before he heard that his father had passed away, he was already saying that he would apply for JR.  Nor does the solicitors’ letter entirely support what the Applicant now says.  Nor does it sit easily with what he said about his intention to apply for JR, in an interview in December 2019: see above.  At best, there was a misunderstanding as to the benefit of the JR Leave Application, but it was made by the Applicant as he had more than once said it would be, and it did give a legal impediment to removal for the period until it was withdrawn.

42.I note the total period of detention is now about 14 months but, in the circumstances overall, I think the period of detention to date has been reasonable.

43.HSP 3: On the face of the material, the Applicant can be removed within a reasonable time.  There is no legal impediment to removal.  He has repeatedly expressed his willingness to return to Bangladesh during interviews with officers from the Immigration Department. Indeed, he has stressed his desire to be removed as soon as possible in the materials filed for these proceedings: see above.  The Applicant has engaged in discussions with representatives of the Bangladeshi Consulate General.  The time taken by the foreign government to process the application is outside the Director’s control, but it does now seem that the process of re-entry is well underway.  On the face of it, there is a willing deportee and a willing government of his place of repatriation, seeking to achieve that repatriation. Though the Consulate General has given no indication as to when the security verification reports will be obtained, nor is that the suggestion that it may take months.

44.HSP 4: I consider that the Director has acted with reasonable diligence and expedition to effect removal of the Applicant.  There have been numerous letters and liaisons with the Consul General on the process of replacing the Applicant’s travel document and any other steps necessary to effect his repatriation.  Though the process was for a time interrupted by the making of the JR Leave Application, prior to its withdrawal, the process of liaison soon recommenced.  As already noted, this liaison appears to have borne real fruit.

45.In the circumstances, I am satisfied that the original detention of the Applicant was lawful and that the continued detention presently remains Hardial Singh compliant and lawful.

F.      Result and Costs

46.The applicant’s application for writ of habeas corpus is dismissed.

47.As to costs, Mr Li accepts that there is no general rule that costs of such an application should follow the event, and the question of costs is approached on a more liberal basis, requiring the exercise of discretion depending on the facts and circumstances.

48.Unlike many other cases, this is not a case in which the Applicant is resisting deportation.  Indeed, he is keen to be deported, to be reunited with his family, and he has sought to facilitate the arrangements, albeit that he has made the present application to be released from detention pending that deportation.  In the exercise of my discretion on the facts and circumstances of this case, I make no order as to costs.

49.In closing, I would only express the view that I hope the shared common intention of the parties to facilitate the Applicant’s swift return to Bangladesh can indeed be effected as soon as possible.  In any event, I trust that the Director will continue to review the reasonableness (and hence lawfulness) of the Applicant’s detention, should the Consulate General not be able to identify the currently expected real progress with the provision of a passport and any other re-entry requirements.

The applicant, acting in person

Mr Sunny Li, Senior Government Counsel, of the Department of Justice, for the respondent