Arwinder Singh v. Secretary for Security and Another
Read the full judgment text of HCAL 675/2022 on BabelCite. This Court of First Instance judgment was delivered on 10 August 2022 before Coleman J.
Constitutional and administrative law – habeas corpus – immigration detention – lawfulness of continued detention – Hardial Singh principles – Court of First Instance – Indian national subject to valid removal order – Applicant detained under section 32(3A) of the Immigration Ordinance Cap 115 for 384 days pending removal – Applicant sought writ of habeas corpus – extensive prior criminal record including five theft convictions resulting in sentences totalling over three years' imprisonment – repeated failures to report recognizance on eight prior occasions – non-refoulement claim history with remittal to TCAB/NCPO agreed in principle – key issue whether continued detention has become unreasonable and unlawful in light of the Hardial Singh principles as summarised in Harjang Singh v Secretary for Security [2022] HKCA 781 – court held that the Director intends to remove the Applicant and is acting with reasonable diligence, the JR application and remitted TCAB/NCPO proceedings are expected to be resolved within a few months, and the risks of absconding and reoffending are real and substantial, justifying continued detention – held detention remains reasonable and lawful – section 32(4A)(f) of the Ordinance relevant to threat/security risk assessment – personal circumstances including Hong Kong resident girlfriend and young son do not outweigh factors against release – civil claim in DCCJ 5547/2021 not a legal impediment to removal – application dismissed – no order as to costs.
Legal issues: Lawfulness of continued immigration detention under Hardial Singh principles
Outcome: Application for writ of habeas corpus dismissed. Continued detention of the Applicant held to be lawful.
Cited by 1 case · Cites 2 cases
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HCAL 675/2022 [2022] HKCFI 2470 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 675 OF 2022 ________________________ BETWEEN
________________________ Before: Hon Coleman J in Court Dates of Hearing: 10 August 2022 Date of Decision: 10 August 2022 _____________ D E C I S I O N _____________ A. Introduction 1.The Applicant is currently held in immigration detention, pending his removal from Hong Kong. By his application dated 27 July 2022, the Applicant seeks a writ of habeas corpus to secure his release. As at the date of this hearing, the Applicant has been detained for 384 days. 2.On 28 July 2022, I gave directions for the putative respondents, the Secretary for Security (“Secretary”) and the Director of Immigration (“Director”), to have leave to file and serve an initial response to the application, which I fixed for hearing today, on 10 August 2022. As the initial response filed identifies, the application is opposed. 3.At the hearing, the Applicant has appeared in person, and he made brief oral submissions. The Secretary and Director have appeared by Ms Hikki Wong, Senior Government Counsel, whose oral submissions supplemented the points made in the initial response 4.After careful consideration of the materials and submissions, this is my Decision. B. Material Facts B.1 Arrival in Hong Kong and Removal Order 5.The Applicant is an Indian national. He arrived in Hong Kong on 27 August 2009, and was refused permission to land. On 20 August 2010, a removal order was later issued against him under section 19(1)(b) of the Immigration Ordinance Cap 115 (“Ordinance”). B.2 Non-Refoulement Claim and Judicial Review 6.In the meantime, upon refusal of permission to land on 27 August 2009, the Applicant immediately lodged a torture claim. On 11 February 2014, the Applicant was informed that his torture claim would be treated as a non-refoulement claim (“NRC”) lodged under the unified screening mechanism and assessed on all applicable grounds. On 22 October 2014, the Applicant withdrew his NRC. But, on 9 December 2014, the Applicant sought to reopen his NRC. 7.On 7 May 2015, the Director issued a Notice of Decision rejecting the Applicant’s NRC. On 18 November 2016, the Director issued a Notice of Further Decision rejecting the Applicant’s NRC. 8.On 5 July 2017, the Applicant filed late applications by Notices of Appeal/Petitions out of time, against the Director’s decisions rejecting his NRC. On 26 April 2018, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO”) refused the late applications. 9.On 5 December 2018, the Applicant filed an application seeking leave to apply for judicial review against the TCAB/NCPO’s refusal decisions. On 17 September 2021, leave to apply for judicial review was granted, on the ground that the TCAB/NCPO had not considered the merits of the Applicant’s case when refusing the late applications. On 13 December 2021, a Legal Aid Certificate was issued to the Applicant. On 17 December 2021, the originating summons of the Applicant’s JR application was served on the Director. 10.As I understand it, there have been ongoing negotiations between the Applicant and the Director (via their legal representatives) on the disposal of the Applicant’s JR application. The latest position seems to be that agreement in principle has been reached that the matter will be remitted to the TCAB/NCPO for reconsideration of the late applications, albeit that the exact terms of the agreement are yet to be finalised. B.3 Criminal Record in Hong Kong 11.The Applicant has been convicted of a number of criminal offences whilst released on recognizance in Hong Kong:
12.As can be seen, the Applicant has been sentenced to periods of imprisonment on several occasions, in total exceeding three years of imprisonment, and see has been made subject to various fines. B.4 Detention and Reviews 13.The Applicant’s current period of detention since 23 July 2021 (“Present Detention”) has been authorised by, and the reviews of it have been conducted by, the Director – meaning that the Secretary has had no relevant involvement. 14.In the Present Detention, the Applicant has been detained under section 32(3A) of the Ordinance pending his removal from Hong Kong. As already stated, that is so far for a period of 384 days. 15.However, prior to the Present Detention, the Applicant had been subject to various periods of detention under the Ordinance and had been released on recognizance. On eight prior occasions, across the period from August 2016 to the last occasion on 6 May 2016, the Applicant failed to report recognizance. This morning, Ms Wong also informed me of her understanding that the Applicant had also failed to report to police bail on three occasions. But, even ignoring those occasions, it is fair to identify the Applicant as someone who has repeatedly failed to report as required as a term of his release. 16.During the Present Detention, reviews of detention have been conducted on 23 September 2021, 21 January 2022, 30 March 2022, 10 May 2022, 19 May 2022, 24 June 2022 and 3 August 2022. On each occasion, release on recognizance was not recommended, on the following consistent grounds that:
17.As regards the last review on 3 August 2022, it might be noted that it post-dated the Court of Appeal’s Reasons for Judgment in the Harjang Singh case [2022] HKCA 781 (see below), which might have triggered a difference in approach to be taken, and now taken, in reviews of detention. 18.The internal memorandum of that review sets out a number of background matters (including family/local connections), and the ‘Assessment and Recommendation’ section reads as follows:
19.The memorandum was signed by an IO(RAL)RD45, and was passed up the chain of command for further consideration, eliciting the following comments from individual officers in the following order:
20.Though the Applicant suggested at the hearing today that he did not know why he had been detained, or why his detention continues, he has in fact been served various Notices of Review of Detention. Following the 3 August 2022 review conducted – and as set out above – the Applicant was served with the Notice of Review of Detention on 4 August 2022, which Notice was signed by him next to the signature of the interpreter who interpreted its contents to him. That Notice, in a tick-box form, identifies to the Applicant the reasons why the Director has chosen to continue to detain him, rather than release him on recognizance. B.5 Other Proceedings 21.By writ dated 3 December 2021 in District Court action DCCJ 5547/2021, the Applicant has commenced a civil claim for loss and damage for the claimed unlawful detention in Castle Peak Bay Immigration Detention Centre, and loss of liberty, for various periods (8 in total) between 7 January 2016 and 2 December 2021, the date immediately preceding the writ. 22.For present purposes, I need not set out the details of the 8 individual periods. But, it can be noted that the last period of detention claimed to amount to false imprisonment is that commencing on 23 July 2021, namely the Present Detention. C. Applicable Principles 23.In its recent Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781, the Court of Appeal addressed the principles to be applied in a case such as the present. The case can be read for its full reasoning and explication of the correct approach, but at §164 the Court offered a summary of the principles which should be adopted and which can be applied as appropriate to the particular circumstances of this case. 24.The summary is as follows:
25.Though I refer to the summary, I also keep in mind the underlying details and rationale. D. Application to this Case 26.There can be no dispute that the removal order made against the Applicant is valid and subsisting. There can also be no dispute that the authority to detain the Applicant is valid. Hence there is prima facie lawful authority to detain the Applicant under section 32(3A) of the Ordinance. 27.The question is whether – now, after 384 days of detention – the detention continues to be lawful. 28.In his affirmation, the Applicant made the following points:
29.At the hearing, the Applicant has made oral submissions by way of additional or emphasised points. He submits that:
30.In her submissions, Ms Wong correctly first identifies the period of detention of 384 days to date as the factor in the light of which other factors are to be assessed. I also note that at least the latest review of detention by the Director (see above) also has that period firmly in mind for the necessary weighing and balancing exercise. 31.Ms Wong then points to the following matters:
32.In this case, as in other applications for habeas corpus, the Court is the judge of, and the primary decision maker as to, the reasonableness of the detainee’s continued detention. Therefore, I approach that question, remembering that the burden of showing that detention is lawful lies upon the Director. I also start from the proposition that every deprivation of liberty pending removal or deportation requires proper scrutiny of all the facts, as those facts appear at the time of scrutiny. 33.Looking at the ‘Hardial Singh principles’ on the evidential materials – but in the order HS1, HS4, HS3, HS2 – it seems to me that:
34.As regards that last point, no one factor is necessarily determinative – though it is important to recognize and give due weight to the period of detention to date, before balancing the various other factors and risks against that period. The weight to be given to the other factors and risks will vary as the period of detention increases in length. 35.In this case, as many others, the risks of absconding and reoffending are of critical and paramount importance in the assessment of the lawfulness of the detention. 36.However, a very careful assessment of the risk must be made in each case, as the magnitude and potential impact of that risk will vary according to the circumstances. In looking at the risks, I have in mind both each risk’s likelihood and its potential seriousness. Here, I have scrutinised the Director’s assessment of risk on both grounds. 37.I agree that, against the previous history of convictions and the numerous prison sentences imposed, the risk of the Applicant re-offending is real and substantial, and the potential consequences are of some seriousness (though perhaps not at the most serious end of the scale). It also seems to me that the Director’s assessment has involved an appropriate consideration of (a) the probability that removal can be effected at all and (b) the proximity of the time to removal. A real sense of the timescale likely to be involved has been identified, to enable it to be qualified as reasonable or unreasonable. The Director’s assessment and reasoning are such that I can give appropriate weight to them. 38.I am conscious that the underlying NRC is only now about to be remitted to TCAB/NCPO. But that is likely to be dealt with expeditiously, in light of the fact that the TCAB/NCPO will be informed of the need for expedition because the Applicant is currently held in detention. I think it fair to think the application will be dealt with at least within 3 months or so. 39.I do not think it helpful in this case to seek to predict what will be the outcome of that remitted hearing. I do not lose sight of the fact that one possible outcome is that the late application would be permitted, and the NRC claim thereby extended, but it seems to me to be better to deal with the consequences of the application once they are known against the then prevailing chronology and other factors. Any such real change in circumstances ought to trigger a further review of detention in the then prevailing circumstances as a whole. 40.The civil claim brought by the Applicant is not a legal impediment nor any other bar to his removal. The Applicant is well able to give instructions to his solicitors, even if he is not in Hong Kong. 41.As to the Applicant’ as personal circumstances, which have some weight in pointing to a release from detention, I would agree that they do not outweigh the other factors. E. Conclusion 42.The prima facie lawful detention of the Applicant has not in all the present circumstances become a period of unreasonable length as would render the continued detention unlawful. Nor is there at present any other reason to order the Applicant’s release. 43.The application is, therefore, dismissed. 44.I make no order as to costs.
The applicant, acting in person Ms Hikki Wong, Senior Government Counsel of the Department of Justice, for the putative respondents |
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