Read the full judgment text of CACV 183/2021 on BabelCite. This Court of Appeal judgment was delivered on 29 July 2022 before Barma JA, G Lam JA, Coleman J.
Administrative detention – immigration – habeas corpus – judicial review – Hardial Singh principles – when does originally lawful administrative detention become unreasonable and so unlawful – Applicant (Indian national, deportation order 22 July 2003) held continuously under section 32(3) of the Immigration Ordinance Cap 115 from 17 August 2018 to 7 December 2021 (1,208 days, almost 3 years 4 months) pending removal from Hong Kong – outstanding non-refoulement claim, petition to the Board, and judicial review proceedings as obstacles to removal – Adjournment Issue: whether mere fact of detainee-caused adjournments can be taken into account against him when assessing reasonableness under HS2 – Reoffending Issue: whether the level and gravity of the risk can justify such a prolonged period of detention – Time for Removal Issue (HS3): how much certainty is required about probability and proximity of removal – Approach of court as primary decision-maker – Family and local connections as factor – Approach on appeal – Hardial Singh principles restated and summarised – Whether judge erred in (i) taking into account mere fact of adjournments not relied on by the respondents in their reviews and not shown to be improper, (ii) treating the Director's risk assessments as conclusive where the contemporaneous tick-box documents contained no real evaluation and the Police had no objection to release on recognizance, and (iii) finding removal could be effected within a reasonable time without any sense of the timescale when the JR proceedings had not been fixed for hearing – Held, appeal allowed; Applicant to be released on recognizance – the period of administrative detention had become unreasonable – the exclusionary rule (that time taken in legal challenges should be excluded) is rejected – the longer the detention, the greater the risk necessary to justify it – a real sense of the timescale for removal is required to qualify continued detention as reasonable – the respondents failed to discharge the burden of showing that the detention remained lawful – respondents to pay the Applicant's costs of the appeal and below.
Legal issues: Adjournment Issue: significance of detainee-caused delays in reasonableness assessment under HS2 · Reoffending Issue: sufficiency of reoffending risk to justify prolonged detention · Time for Removal Issue: certainty and proximity of removal under HS3 · Family and local connections as a factor in reasonableness · Proper approach on appeal from a habeas corpus / judicial review decision
Outcome: Appeal allowed. Applicant ordered to be released from immigration detention.
Cited by 154 cases · Cites 6 cases