Safder Tehseen v. Secretary for Security and Another

HCAL 707/2022

[2022] HKCFI 2472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 707 OF 2022

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BETWEEN

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Before:  Hon Coleman J in Court

Dates of Hearing:  11 August 2022

Date of Decision:  12 August 2022

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D E C I S I O N

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A. Introduction

1.This case is different from a more usual case where a person who has been held in immigration detention claims that the originally lawful detention has gone on for so long a period that it has become unlawful, since becoming unreasonable in all the circumstances. Such a person claims that he should be released on recognizance, the alternative to continued detention.

2.In this case, a person who has been released on recognizance for a lengthy period of time claims that later being taken (back) into immigration detention was unreasonable, and hence unlawful, from the beginning – and that the continuing detention has at all times been unlawful.

3.That person is the Applicant. He is currently held in immigration detention at the Castle Peak Bay Immigration Centre (“CIC”) – under section 32(3) of the Immigration Ordinance Cap 115 (“Ordinance”) – pending removal from Hong Kong under a deportation order made on 25 April 2005 (“Deportation Order”).

4.Last released on recognizance on 27 August 2012, his release on recognizance was revoked on 24 June 2022, and he has been detained since then, namely for a period of 49 days.

5.First by ex parte application on 2 August 2022, the Applicant applied for a writ of habeas corpus, seeking release from that detention. On 2 August 2022, I directed the application to be served on the respondents (“Secretary” and “Director” respectively) and gave them leave to file and serve an initial response on or before 8 August 2022 (extended to 1pm on 9 August 2022). I also gave leave for the Applicant to issue the originating summons, which is dated 3 August 2022. Further, I directed the application to be heard yesterday, on 11 August 2022.

6.The Secretary and the Director have been represented by Ms Karen Ngai, Senior Government Counsel (Acting), who filed the initial response which also stands as the skeleton submissions for the hearing. The Applicant has been represented by Mr Timothy Parker and Mr Josh Baker of Counsel.

7.At the end of the hearing I reserved my decision to handed down today. This is my Decision.

B.  Factual Matters

B.1  Applicant’s Immigration Status

8.The Applicant is a Pakistani national, born in Pakistan on 10 April 1982.

9.The Applicant came to Hong Kong as a visitor on 16 May 1997, when he was 15 years of age, travelling with his father. On 4 December 1997, he was permitted to remain for 12 months as a dependant of his father, who was on unconditional stay in Hong Kong. Extensions of the permission to retain were granted on three occasions up to 16 June 2005.

10.However, the Applicant’s permission to remain as a dependant was invalidated by virtue of section 20(7) of the Ordinance on 25 April 2005 when the Deportation Order was made against him (see below). Since that date, he has been liable to deportation.

11.A previous application for leave to apply for judicial review against the Deportation Order (made in HCAL 75/2012 at the same time as a previous habeas corpus application in HCAL 89/2012) was dismissed by Fung J on 19 July 2012, with reasons given on 25 July 2012.

12.At the time of the making of the Deportation Order, detention under section 32(3) was authorised by the Principal Assistant Secretary for Security. The Applicant was last released on recognizance by the Immigration Department (“ImmD”) under section 36 of the Ordinance on 27 August 2012.

13.The Applicant has on four specific occasions – which he frankly accepts – failed to report to the Director on recognizance. The third occasion occurred in February 2012, when the Applicant was wanted by the Police for a case of wounding, but failed to report under his recognizance. He was detained when he ‘resurfaced’ in May 2012 (leading to the previous applications mentioned above, seeking to challenge the Deportation Order and for a writ of habeas corpus).

14.Otherwise, until the last and very recent failure to report on 13 June 2022 (to which I will return below), it seems that the Applicant has reported properly since August 2012, and he has not absconded.

15.The Applicant married a Hong Kong permanent resident on 13 January 2012. The Applicant’s application made on 25 May 2012 for entry for residence as a dependent of his wife was met by the ImmD informing him that the application could not be considered because he was subject to the Deportation Order. Nevertheless, he has continued to be released on recognizance since 27 August 2012, and in that period he and his wife have had two children.

16.The Applicant’s long period of release on recognizance ceased on 24 June 2022, when the current period of detention commenced (in the circumstances canvassed below).

B.2  Convictions and Deportation Order

17.On 16 March 2005, the Applicant was convicted of the offence of conspiracy to steal the property of a deceased person, and sentenced to 7 months’ imprisonment. It seems that part of the mitigation put forward was that the Applicant had provided information to the Police about two other individuals. The Applicant’s CAT claim, which he later put forward (see below), is based on a fear of retribution from those two individuals.

18.On 25 April 2005, the Deportation Order was made against the Applicant on the basis of that conviction. The Deportation Order was made pursuant to section 20(1)(a) of the Ordinance, under which the power to deport arises if an immigrant has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years.

19.On 22 November 2011, the Applicant was also convicted of the offence of dealing with goods to which the Dutiable Commodities Ordinance Cap 109 applies, and he was fined $5,000. The Applicant says the offence occurred when he filled up the family car at an unlicensed petrol station.

20.On 9 September 2017, the Applicant was convicted of the offence of possession of an identity card relating to another person, and sentenced to 18 months’ imprisonment. But, he was subsequently acquitted on appeal, and awarded his costs.

21.As a result, and notwithstanding a number of other occasions when the Applicant was arrested but charges were dropped or no charges were laid (as have been detailed in the initial response), there are only the two occasions on which he was convicted, and the last occasion was in late 2011.

22.As already stated, since the date of the Deportation Order, the Applicant has been liable to deportation. However, he has not been deported as a result of various proceedings taken out by him. They include: (1) a torture claim and non-refoulement claim and the related appeal/petition, which were all refused/dismissed; and (2) an application for leave to apply for judicial review of the Deportation Order, and subsequent appeals, which were all refused by the Court.

23.Two requests for suspension or rescission of the Deportation Order, and one petition to the Chief Executive, were made. They were also all unsuccessful. Intended judicial review proceedings relating to the Secretary/Director’s decision not to suspend or rescind the Deportation Order went all the way to the to the Court of Final Appeal, without success as leave was refused at all levels.

B.3  Torture Claim and Non-Refoulement Claim

24.The Applicant lodged a torture claim on 29 March 2005, and it was refused by the Director on 10 January 2008. On 29 July 2008, his petition against refusal of torture claim was refused by the Secretary under the then screening mechanism. An asylum claim made in August 2008 was closed on 4 November 2008.

25.The Applicant’s torture claim was later reassessed under the replacement screening mechanism. That claim was refused by the Director on 8 February 2012.

26.On 7 March 2014, the Applicant lodged a non-refoulement claim (“NRC”) under the unified screening mechanism and was assessed on applicable grounds other than risk of torture. On 18 December 2018, the NRC was refused by the Director. On 31 December 2018, the Applicant filed an appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”).

27.Following hearings in September and November 2021, and a request made on 27 June 2022 by the Director for the Board to expedite its decision, the NRC was dismissed by the Board’s decision on 14 July 2022. The Board held that the Applicant was unable to make out his claims, and rejected the petition on all applicable grounds.

28.On 22 July 2022, the Applicant filed a Form 86 in HCAL 649/2022 seeking leave to apply for judicial review of the Board’s decision dated 14 July 2022. Enquiries have been made of the Court as to how long it might take for that application to be considered, and a request has been made for the application to be accorded priority.

29.On 5 August 2022, the Applicant’s solicitors informed that the Applicant had applied for legal aid to prosecute his JR leave application. Therefore. It seems the usual automatic 42-day stay of the proceedings has been triggered.

B.4  Present Detention

30.On 10 June 2022, a shooting incident occurred at 34 Wyndham Street, Central. The incident received widespread media attention.

31.The Applicant says that, on or around 14 June 2022, he became aware that he was being sought by an officer of the Organised Crime and Triad Bureau (“OCTB”), and instructed his then solicitors (“LLF”) to contact the OCTB to offer himself for interview with any police station. Though it seems that LLF was originally told that the Applicant was not a person of interest, he was in fact arrested when he presented himself at Shatin police station on 23 June 2022.

32.The Applicant had been due to report on recognizance on 13 June 2022, but had failed to do so. He only reported recognizance on the day he attended the police station, 23 June 2022. He has sought to explain his failure to report as being due to having back pain, supported by sick leave medical certificates that he has presented. Insofar as it has been suggested that the sick leave certificates cover only 13 and 14 June 2022, I note that the exhibits to the Applicant’s affirmation include sick leave certificates (albeit issued by more than one issuer) which cover the period up to and including 23 June 2022.

33.The Applicant was interviewed by the Police on 24 June 2022, and then released subject to further case investigation. He was not released on Police bail. I note that, in his affirmation, the Applicant categorically denies any wrongdoing in relation to the events being investigated.

34.However, on 24 June 2022, the Applicant was referred to ImmD, by a memorandum headed ‘Referral of a Prisoner’ in which the Commissioner of Police (“Commissioner”) stated that he “would be grateful” if the Director “could take over the above subject for further action”.

35.On the same date, a further memorandum headed ‘Referral of Information’ was sent by the Commissioner to the Director, informing that:

(1)  the OCTB was investigating a case of shooting with intent/arson/attempted wounding with intent/possession of offensive weapons, arising from a violent confrontation between two criminal gangs, and that in the incident, a suspect fired at least one shot and hit one of the arrested persons;

(2)  investigation had led to the arrest of the Applicant for conspiracy to wounding with intent in connection with the “shooting party”;

(3)  the offence is of serious nature and any offender convicted upon indictment of the offence of conspiracy to wounding with intent would be liable to life imprisonment;

(4)  further enquiries were ongoing, and no charge had been laid against the Applicant;

(5)  given his immigration status, the Commissioner wished to bring the Director’s attention to the above matters for his necessary action.

36.Having balanced the relevant circumstances of the case, the Applicant’s recognizance was revoked by ImmD and he has since been detained in CIC under section 32(3) of the Ordinance pending deportation from Hong Kong in accordance with the Deportation Order.

37.A Notice of Detention, informing the Applicant of the authority for and grounds for detention, was provided to him on the same day.

38.There then followed correspondence between LLF on behalf of the Applicant and ImmD, and later between his now solicitors (“D&A”) and ImmD. The chronology of the correspondence has given rise to the argument on behalf of the Applicant that the responses from ImmD have been unacceptably slow and failed to treat the deprivation of the Applicant’s liberty with the urgency and seriousness it deserves. Essentially, the argument is made that (a) little real engagement was forthcoming from the Secretary/Director until their initial response filed on 9 August 2022, (b) that is so notwithstanding the Applicant’s solicitors had sent correspondence requesting detailed responses and setting out at some length the arguments why it was suggested the detention was not lawful, and that the Applicant should be released on recognizance; and (c) the “real reason” for the Applicant’s detention was only belatedly disclosed, and differs from the initial reasons given.

39.I do not think it is necessary for present purposes to go into much of the detail of that correspondence. But I think there is some force in the criticism about the slowness of response, where it seems that holding replies were sent by the Director by fax, but substantive replies were sent only by post – apparently causing a delay of about seven days between the date of the letter and its receipt, that fact also giving rise to a lack of synchronicity in the correspondence.

40.On 29 June 2022, the Director sought the Secretary’s review of the Applicant’s detention. In the internal recommendation made to the Secretary, and under the heading ‘where the person concerned constitutes a threat / security risk to the community’, the recommending officer wrote, among other things (italics in original):

- while being released on recognizance, he was arrested by the Police on 23 June 22 for “Conspiracy to Wounding with intent” in relation to a violent confrontation between two criminal gangs that occurred in Wyndham Street, Central on 10 June 2022. Even though the Police is still investigating the case, the suspected offence is very serious which, if convicted upon indictment, would be liable to life imprisonment. The subject is very likely to pose a threat or security risk to the local community.

41.On 6 July 2022, the PAS for S reviewed the Applicant’s detention and informed the Director that it was considered that there are grounds for continued detention.

42.After the dismissal of the Applicant’s NRC by the Board, the Director wrote on 14 July 2022 to the Consulate General of Pakistan requesting the issue of a replacement travel document to the Applicant for his repatriation.

43.On 15 July 2022, the Commissioner stated (in reply to ImmD’s inquiry) that the Applicant “potentially poses a security concern to Hong Kong should he be released on recognizance”. Reference was made to the Applicant’s past record of criminal convictions coupled with “his current adverse connection with criminal gangs, in particular the shooting party”.

44.On 22 July 2022, D&A informed ImmD that the Applicant had filed his JR leave application in HCAL 649/2022, and requested a review of the Applicant’s detention.

45.On 26 July 2022, the PAS for S reviewed the Applicant’s detention and decided that there were grounds for continued detention, taking into account the following factors: (1) the Applicant’s removal is going to be possible within a reasonable time; (2) the Applicant poses a threat or security risk to the community; (3) the Applicant may abscond and/or (re)offend; and (4) there are no other circumstances in favour of his release.

46.On 8 August 2022, the Commissioner sent a memo to the Director stating that his stance of raising security concern about the Applicant being released on recognizance still stood.

47.Also on 8 August 2022 (namely after commencement of these proceedings), the Director requested the Secretary to review the Applicant’s detention authority under section 32(3) of the Ordinance. Part of §8 of the requesting memorandum states:

Moreover, by two memorandums dated 15 July 2022 and 8 August 2022 from the police to the Immigration Department (Annexes A and B), it was noted that [the Applicant] was arrested on 23 June 2022 by the Police for “Conspiracy to Wounding with Intent” in connection with a case of “Shooting with intent/Arson/Attempted Wounding with Intent/Possession of Offensive Weapons” arising from a violent confrontation between criminal gangs on 10 June 2022 in Central. The offence is of a serious nature and any offender, if convicted upon indictment, would be liable for life imprisonment. It was assessed, among others, that [the Applicant] potentially posed a security concern to Hong Kong should he be released on recognizance upon discharge and continuously staying in Hong Kong. Given the above, [the Applicant] is likely to pose a threat and security risk to the local community. The conviction(s) of [the Applicant] and sentence(s) imposed by the Court, as well as the comment from the Police, also reflected the potential gravity of risk of his commission of further offence(s) if released on recognizance.

48.In the internal recommendation made to the Secretary, and under the heading ‘where the person concerned constitutes a threat / security risk to the community’, the recommending officer wrote, among other things:

the Police considered the subject has connections with criminal gangs and suspected him to be the protector of the gunman in the above-mentioned violent confrontation. Police and ImmD both considered the subject potentially pose a threat or security risk to the local community. Releasing him on recognizance may lead to further violent incident.

49.The internal recommendation also included a paragraph stating:

4.  Based on the information provided by ImmD and the Police, the suspected offence committed by the subject is serious and violent in nature. He is also involved in organised crime and Triad activities. It is not unreasonable to form a view that releasing the subject on recognizance would pose a threat / security risk to the local community and there is substantial absconding risk if he is released on recognizance.

50.On 9 August 2022, the PAS for S reviewed the Applicant’s detention and still decided that there were grounds for continued detention in the circumstances.

51.On 10 August 2022, D&A was notified by the ImmD that the Director was not prepared to accede to the request for release of the Applicant on recognizance, and that his detention would be reviewed as and when appropriate.

52.In the internal memorandum leading to that conclusion, reference was made to various factual aspects including, the issuance and basis of the Deportation Order; the other conviction; the current status; the proof of identity and re-entry; the latest NRC and JR status; the habeas corpus application; the reviews of detention; the Police comment; the failure to report recognizance/jumping bail; local connection; and additional information. The section on ‘Police Comment’ included that (bold and underlining in original):

… it was assessed that subject potentially posed a security concern to Hong Kong should he be released on recognizance and releasing him on recognizance may lead to further violent incident.

53.The ‘Recommendation’ section reads as follows (bold and underlining in original):

2.  Subject has been detained in the Castle Peak Bay Immigration Centre (“CIC”) for over one month since 24-06-2022 pending removal from Hong Kong. Regarding his judicial review case in relation to his non-refoulement claim, assistance from the Court has also been sought to accord priority to the said leave application. Therefore, it is estimated that the leave application could be determined in a reasonable foreseeable future.

3.  Regarding subject’s re-entry to Pakistan, a letter was last sent to the local PAK CG on 14-07-2022 for the issuance of a replacement travel document to subject and the local PAK CG had replied on 08-08-2022 that the said application was under active processing. In the premises, it is believed that subject’s re-entry to PAK can be secured within a reasonable period of time.

4.  A deportation order for life was made against subject on the basis of his criminal conviction of “Conspiracy to steal” for which he was sentenced to seven months’ imprisonment on 16-03-2005. The said offence is considered to be a serious one as it is a deportable offence under s.20 of the Ordinance. During his release on recognizance, subject was further convicted of the offence of “Dealing with goods to which Dutiable Commodities Ordinance applies” and sentenced to a fine of HKD 5,000 on 22-11-2011. Moreover, by memo is dated 15-07-2022 and 08-08-2022, the Police advised ImmD, among others, that subject had adverse connection with criminal gangs, in particular the shooting party involved for a “Conspiracy to wounding with Intent” case in June 2022 and it was assessed that subject potentially posed a security concern to Hong Kong should he be released on recognizance and releasing him on recognizance may lead to further violent incident. Given the above, subject is likely to pose a threat and security risk to the local community. The potential gravity of offence(s) committed, if subject is released, is not a low one.

5.  During his previous release on recognizance, subject had failed to report recognizance on three occasions and jumped Police bail on one occasion. On the facts, there is a real possibility that subject, if released, will abscond.

6.  Subject’s family connection in Hong Kong and the claimed medical condition of subject and his HKPR wife have been taken into consideration but such factors do not outweigh the factors against release of him as stated above. As regards subject’s health condition, there is no reason to believe that subject would not receive proper medical treatment at the CIC if required.

7.  Subject has been detained for over one month for the present detention and with reasonable diligence as mentioned above, there should be reasonable prospect that his judicial review in relation to his non-refoulement claim could be finalised in a reasonable foreseeable future. Should subject’s judicial review be finalised and replacement travel document been secured, arrangement will be made to effect his deportation as soon as practicable, subject to no other unusual circumstances or impediment hindering his deportation. Having considered all relevant circumstances and balancing all factors including the time of detention of subject for over one month, the Police’s comments on subject’s security concern and the above-mentioned PAS’s conclusion on the review of subject’s detention, this is not a case warranting release of subject on recognizance in lieu of his detention under section 32(3) of the Ordinance pending his deportation from Hong Kong.

54.The memorandum was signed by an IO, and was passed up the chain of command for further consideration by a SIO, CIO, APIO and PIO. All made handwritten notes confirming their view as to balancing the various factors leading to the conclusion that this is not a case warranting release on recognizance.

55.The Notice of Review of Detention provided to the Applicant on 10 August 2022 is in the usual tick-box format. By reference only to the boxes ticked, and the additional details there provided, the Applicant was given notice that the decision not to grant release on recognizance was on the basis of the following factors (italics, striking out and underlining in original):

3.		There is no sufficient reason to believe that your case cannot be finalized in the near future.
		(Details: Regarding your judicial review leave application in relation to your non-refoulement claim, the Department of Justice had sought assistance from the High Court to accord priority to the said leave application by a letter dated 3 August 2022.)
6.		If there is an outstanding claim / legal proceeding, there is no sufficient reason to believe that your claim / legal proceeding could not be completed within a reasonable period of time.
		(Details: Please refer point 3 as above.)
7.		You pose, or are likely to pose, a threat or security risk to the community.
		(Details: You were convicted of the offences of “Conspiracy to steal” and “Dealing with goods to which Dutiable Commodities Ordinance Applies” in 2005 and 2011. The Police also assessed that you potentially posed a security concern to Hong Kong should you be released on recognizance as you are conceived to have connection with the criminal gangs involved in the violent confrontation in Central.)
8.		You have conviction(s) associated with crime(s) of serious or violent nature.
		(Details: You were convicted of the offences of “Conspiracy to steal” and “Dealing with goods to which Dutiable Commodities Ordinance Applies” in 2005 and 2011, which are deportable offences.)
10.		You have previously absconded or escaped from custody.
		(Details: You had failed to report recognizance on three occasions between 2007 and 2012. Your legal representative also revealed that you had failed to report recognizance recently on 13 June 2022.)
11.		You have a record of jumping bail.
		(Details: You had jumped Police bail on 18 October 2007.)
12.		You had failed to comply with the terms / conditions of recognizance.
		(Details: Please refer point 10 as above.)
15.		You are re-arrested during recognizance.
		(Details: Please refer points 7 & 8 as above.)
25.		Others (please specify): Your family connection in Hong Kong and the claimed medical condition of you and your wife have been taken into consideration. However, these factors do not outweigh the factors which are in support of your continued detention pending deportation.

56.That was the position reached as at the day before the hearing of this application.

B.5  Applicant’s Personal Matters

57.The Applicant is now 40 years old. He lives in Tai Po with his wife and two children, boys aged four and five. In his affirmation filed in support of his application, the Applicant says that his wife is a businesswoman and that he provides primary care to the children, including taking them to and from school during the week.

58.The Applicant says he is extremely worried about his family since the current detention. His wife is now left to take care of the two young boys, while struggling to maintain her business. Because of the stress and anxiety caused, his wife has started consulting a psychiatrist and has been diagnosed with adjustment disorder with mixed depressive and anxious reaction, treated by prescribed hypnotic drug and an antidepressant. A medical report was provided with the Applicant’s evidence.

59.The Applicant is also concerned that his sudden and continuous detention would cause irreversible trauma and damage to his sons’ mental health and well-being.

60.Further, the Applicant says he sustained back injuries in 2021, but the necessary physiotherapy and swimming, which helps to mitigate his pain, has been denied since he was detained in CIC. His back pain is intense and worsening. Further, he has been diagnosed with a fatty liver, and has been assessed at being at higher risk of suffering from coronary heart disease. But he has been forced to miss the latest appointment for follow-up Magnetic Resonance Imaging.

C.  Applicable Principles

61.Subject to one point – namely as to when the so-called ‘Hardial Singh principles’ apply – there is no real dispute as to the principles to be applied in a case such as the present. They were recently addressed by the Court of Appeal in its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781.

62.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.

63.The summary is as follows:

(1)  The central question on an application for habeas corpus is whether there is, and continues to be, lawful authority for a detention.

(2)  An originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

(3)  What is a ‘reasonable time’ will therefore depend upon the circumstances of the particular case, taking into account all relevant factors.

(4)  The lawfulness of detention, or continuing detention, is subject to potential objective review by the Court. But the review is not a review as to Wednesbury unreasonableness, or on other public law grounds.

(5)  Either continuing detention is reasonable and so lawful, or it is not. Though the Court’s review involves an exercise of judgment and balance, that is not a discretionary decision.

(6)  Hence, the Court is the judge of, and the primary decision maker as to, the reasonableness of the detainee’s continued detention.

(7)  The burden of showing that detention is lawful lies upon the Secretary and Director.

(8)  The assessment will be made in line with the ‘Hardial Singh principles’, namely that:

(HS1) the Secretary/Director must intend to deport the person and can only use the power to detain for that purpose;

(HS2) the deportee may only be detained for a period that is reasonable in all the circumstances;

(HS3) if, before the expiry of the reasonable period, it becomes apparent that the Secretary/Director will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; and

(HS4) the Secretary/Director should act with reasonable diligence and expedition to effect removal.

(9)  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.

(10)  A review of what might be regarded as a reasonable period of 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 (which may have the effect of defeating the deportation order); and (g) the danger that, if released, he will commit criminal offences.

(11)  It is helpful first to identify and have firmly in mind the period of detention to date, before balancing the various other factors and risks against that period. This is because the weight to be given to the other factors and risks will vary as the period of detention increases in length.

(12)  Though it might seem attractive to set guideline periods or a red line (in terms of months or years) applicable to all cases, as to the circumstances in which a lawful detention becomes unreasonable and hence unlawful, no such guidelines can be set. Indeed, any attempt to do so is unhelpful. Reference to the facts of other cases is also likely unhelpful.

(13)  Nor would it be correct to think that the longer any period of detention, the greater the scrutiny that would be applied to it. Every deprivation of liberty pending deportation requires proper scrutiny of all the facts, in accordance with the Hardial Singh principles, which are the sole guidelines.

(14)  The risks of absconding and reoffending are of critical and paramount importance in the assessment of the lawfulness of the detention.

(15)  This is because if a person absconds, it will defeat the primary purpose for which the power to detain has been conferred, and for which the detention order was made in the particular case.

(16)  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.

(17)  The risk of absconding is distinct from the risk of committing further offences, and not dependent on that further risk.

(18)  The risk of reoffending requires its own distinct assessment, by reference to both its likelihood and seriousness.

(19)  Neither risk can justify detention of any length, as that would permit indefinite detention.

(20)  The longer the detention, the greater the risk necessary to justify it.

(21)  The Court will rigorously scrutinise the Secretary/Director’s assessment of risk on both grounds, and the weight to be given to that assessment will include consideration as to how convincing the reasoning is.

(22)  When assessing (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 must be identified to be able to qualify it as reasonable.

(23)  There must be a sufficient prospect of removal to warrant continued detention, having regard to and balanced against the weight of all other circumstances of the case.

(24)  As the period of detention gets longer, the greater the degree of certainty and proximity of removal would be expected to be required in order to justify continued detention.

(25)  On any appeal from a first instance decision of the Court, the appellate court will not interfere with the judge’s decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts. The leeway given to the first instance judge is not as a result of the view that he has made a discretionary decision, but rather as a reflection that the balancing exercise can be difficult.

64.Though I refer to the summary, reference can be made as apt to other paragraphs which also deal with the principles and the underlying details and rationale.

65.Insofar as it is necessary to do so, I will deal with the potentially disputed aspect of the application of the principles when I deal with my assessment of the merits of the challenge brought by the Applicant against his detention.

D.  The Challenge

66.It is helpful first to set out the basis of the Applicant’s challenge to his detention or continued detention.

67.Mr Parker submits that a central question in this application is whether, on an objective assessment, the mere fact of the Applicant’s arrest by police is a sufficient change of circumstances to warrant (reasonably) his re-detention. Though I can return to the point later, it seems to me that the framing of that question is somewhat ‘loaded’, and may not direct the judicial mind to the correct starting point.

68.In his oral submissions – in a way I think is the better way of framing the dispute – Mr Parker emphasises that there are in fact two main questions to be answered, namely (1) was the detention lawful at the outset? and (2) if so, is the detention now lawful?

69.Mr Parker goes on to submit that the Applicant’s detention was and remains unreasonable, and therefore unlawful, on the following main grounds:

(1)  The purpose of taking the Applicant in detention has nothing to do with removing him from Hong Kong, in breach of Hardial Singh Principle 1 (“HS1”). On the contrary, if there was sufficient substance of the allegations against the Applicant to see him charged in respect of the shooting incident, he would have to be kept in Hong Kong to face trial (and if convicted serve any sentence).

(2)  The decision to detain the Applicant (by revoking his recognizance) was unreasonable in the absence of any material change in circumstances. Accordingly, any period of detention is unreasonable (HS2).

(3)  His removal will not be possible within a reasonable time (HS3).

70.Mr Parker also makes the following points in support of those main grounds (in my summary of them):

(1)  The Director has been unacceptably slow in dealing with the Applicant’s enquiries about the deprivation of his liberty.

(2)  The initial reasoning for the detention appears to have evolved, ultimately revealing that the real reason for detention is the fact of the Applicant’s arrest on 23 or 24 June 2022.

(3)  The overwhelming majority of circumstances identified in the Notice of Detention have been in existence for more than 10 years before the arrest, and the arrest was and is the only change of circumstances.

(4)  The Commissioner’s concerns about security were made in response to undisclosed prior memos from the Director, and the Commissioner does not state the strength of his suspicion as to the Applicant’s involvement in the shooting party incident, still less any evidential basis for that (it apparently having now been accepted that the Applicant was not at the scene of the shooting).

(5)  The allegation of gang affiliation arises out of the same incident, and is not a separate or different ground of risk.

(6)  Even the direct participants in the incident have since been granted bail.

(7)  Indeed, the Director and Secretary are thus unable to evaluate the extent of risk for themselves. All that they know is that (a) the Applicant was arrested in connection with the shooting incident, but was released unconditionally (not even on police bail) and has not been charged, (b) the Applicant has been suspected of being the “gunman’s protector”, whatever that means, and (c) the Commissioner’s opinion is that the Applicant potentially poses a security concern should he be released on recognizance.

(8)  In effect, the Secretary and Director have delegated the security risk assessment to the Commissioner, which is not permissible.

(9)  The reviews of detention, including the lengthier and more detailed review dated 8 August 2022, only identify a “risk of a risk”, by reference to incorrect or inconsistent materials. For example, there seems to be an inconsistent variation of the assessment of risk upwards and downwards through the differing and inconsistent use of words like “potentially”, “likely”, “very likely”, and “may”.

(10)  The reviews also fail to take account of the long history of complying with recognizance requirements and of the close family ties in that context, and fail to take account of the time that might be needed to deal with whatever suspicions against the Applicant as might lead to a trial (and possibly serving any sentence).

(11)  Objectively, the materials do not provide an adequate or rational foundation for considering that a “tipping point” has been crossed, so that the Applicant’s detention is now justified.

(12)  As there was no material change of circumstances since the Applicant was rightly put on recognizance, no period of time for detention is reasonable under HS2.

71.By way of further explanation of the “tipping point” argument, which he said should be the focus of the consideration, Mr Parker submits that the Secretary and Director must be taken to have accepted that as at 22 June 2022 it was not possible lawfully to have detained the Applicant. But, the fact of arrest on 23 June 2022 was not such a change to the circumstances as made it then possible lawfully to detain the Applicant.

72.As an alternative, Mr Parker submits that, even if the Secretary and Director do not have to be taken to have had that view as at 22 June 2022, a proper objective view of the factual circumstances is that it would not have been possible lawfully to have detained the Applicant as at that date. Hence, the critical element against all of the background is whether the facts coming to the attention of the Secretary/Director on 23 and 24 June 2022 generated a basis for departing from the previous stance and for a lawful detention.

73.Mr Parker submits that it is not enough to point to the authority for detention given by section 32(3) of the Ordinance. Whilst that might identify prima facie authority and lawfulness, there may be other circumstances which would render a decision to detain unlawful “in the bigger sense”. By way of an example or analogy, he identified an apparently lawful detention may still be arbitrary and so unlawful in the bigger sense.

74.As to HS3, Mr Parker submits that:

(1)  No consideration has been given to a possible prosecution, or sentence of imprisonment, as an obstacle to removal (though Mr Parker also recognises the potential inconsistency of that point with his submissions on HS2, but suggests that only points out the strength of those submissions, and that the Secretary/Director cannot have it both ways).

(2)  The Applicant has only recently filed the JR leave application, which is stayed pending his legal aid application.

(3)  It is unlikely that the JR leave application could be resolved quickly, and the Secretary/Director have not attempted any assessment, even in broad terms, of how long the JR proceedings might take to resolve.

(4)  Whilst they might take four months to resolve, it could be less or could be much more.

(5)  It would be premature to make an assessment of the possible merits of the JR leave application, when the application filed was a “placeholder”, and will be subject to amendment in due course.

(6)  Therefore, removal is not possible within a reasonable time.

75.As to the submission on ‘having it both ways’, Mr Parker submits that: (1) if there is no significant security risk identified by the fact of the Applicant’s recent arrest then unconditional release, there was no basis to revoke the recognizance, but (2) if there is a significant security risk identified, then the apparently likely prosecution and potential imprisonment is itself an obstacle to removal, pointing against detention. That contradiction, says Mr Parker, is unresolved and the point has not been answered in the submissions made on behalf of the Secretary/Director.

76.As to the medical condition of the Applicant, Mr Parker submits that the approach taken by the Secretary/Director appears to be based upon the detention policy published on the ImmD’s website, where amongst the listed criteria which may be relevant against detention are the criteria that:

	The detainee is in a serious medical / mentally ill-health condition”
	The detainee is physically disabled requiring constant nursing care.

77.Mr Parker submits that those criteria identify thresholds which are much too high.

E.  The Response to the Challenge

78.Ms Ngai starts her substantive submission with the straightforward point that the Applicant is subject to the Deportation Order issued on 25 April 2005, so that the Secretary plainly has lawful authority to detain him under section 32(3) of the Ordinance.

79.Next, she submits that the 49-day period of detention has been reasonable. It is a relatively short period of detention. The Director is intent upon removing the Applicant at the earliest possible moment, as evidenced by the steps taken to expedite the Board’s decision, and to obtain a travel document from the Pakistani Consulate General, and the request for expedition of the JR application.

80.Further, throughout the entire detention period, the Secretary/Director were reasonably of the view that the Applicant could be removed within a reasonable period of time, and it is not now apparent that that cannot be done:

(1)  From 24 June 2022 to 14 July 2022 (21 days): There was the outstanding appeal/petition to the Board, and there was no reason why that could not be determined expeditiously when the Director requested an expedited response (which appears to have occurred). It was also right to note that the Applicant’s CAT claim raised in 2005 was refused in 2008, and again in 2012 after reassessment, and that to oral hearings for the appeal/petition had been conducted before the board in late 2021.

(2)  From 15 July 2022 to 11 August 2022 (28 days): While awaiting a replacement travel document to be issued for the Applicant’s removal, he filed his JR leave application on 22 July 2022. The view remains that the JR leave application could be disposed of within a reasonable period of time, including by reference to the request for priority to be given to it by the Court. Further, looking at the four vague and general grounds of review in the Form 86, it is likely that the JR leave application will fail, so that minimal weight to the time taken for the determination of the challenge should be accorded.

81.As to the security risk, Ms Ngai submits that the memoranda from the Commissioner to the Director are relevant contemporaneous documentation showing the bases of the Secretary’s and the Director’s consideration that the Applicant poses a security risk to the community. The suspected offence for which the Applicant was arrested is of a very serious nature, and the threat or security risk posed cannot be underestimated in this case. The reasonableness of the period of detention must be read together with the threat or security risk which may be posted community.

82.However, Ms Ngai also emphasised that the security risk was not the sole, nor even the determinative, factor leading to the decisions to detain and continue detention. She pointed to the reviews of detention which specifically took into account the various other matters, including (but not limited to) the possibility of removal in the near future, and the previous failures on recognizance, with the most recent on 13 June 2022 (after the shooting incident and just a few days before the arrest of the Applicant).

83.As to the family considerations, Ms Ngai submits that they arguably have little weight against the overall circumstances in light of the extant Deportation Order, meaning that the Applicant is expected to be removed from his family in Hong Kong anyway. Of itself, distress to family members is not a sufficient legal ground to find that the detention is illegal. Ms Ngai also emphasises that the Applicant’s family connection in Hong Kong was recognised and weighed, including specifically by reference to the risk of absconding.

84.As to the Applicant’s medical condition, Ms Ngai says that he has either received, or can receive, medical treatment in CIC, and there is further no reason to believe that he would not receive proper medical treatment if required.

F.  Consideration of the Merits

F.1  Context

85.It seems to me that the consideration of the challenge brought in this habeas corpus application must not lose sight of the context.

86.That context includes that the Applicant is the subject of an extant and valid Deportation Order, and that the previous challenge to the Deportation Order and requests for its suspension or rescission have all failed. Therefore, there has already been an unassailable decision that the presence of the Applicant in Hong Kong is undesirable, and he should be deported. He has only not been removed so far because of various legal impediments in the form of ongoing (and, at least partly because of changing the screening mechanism, repeated) torture and non-refoulement claims, and challenges to the Deportation Order – all of which have so far failed.

F.2  Was Detention Lawful At All?

87.The Deportation Order was made against the Applicant under section 20(1)(a) of the Ordinance. Section 25 provides for the detailed steps for removing a person subject to a deportation order (or a removal order) from Hong Kong.

88.Because of the existence of the Deportation Order, I do not think it can be disputed that section 32(3) of the Ordinance empowers that the Applicant may be detained pending his removal from Hong Kong. Section 32(3) confers authority for the detention of such a person pending removal in these terms:

A person in respect of whom a removal order under section 19(1)(a) or a deportation order is in force may be detained under the authority of the Secretary for Security pending his removal from Hong Kong under section 25.

89.It is also settled that the detention powers granted under section 32 of the Ordinance are part of the statutory machinery designed to regulate termination of a person’s stay in Hong Kong and to ensure his enforced departure where a decision to remove has been taken. But, the Secretary and the Director are not given an unlimited discretion, and can only exercise the power subject to certain built-in statutory limitations. Materially for present purposes, the powers of detention under section 32(3) can only be used against a person who is subject to a deportation order which is in force, and only pending that person’s removal from Hong Kong.

90.Sub-sections 32(3B), (3C) and (3D) also identify that:

(1)  “pending removal” includes awaiting a response from relevant authorities outside of Hong Kong for approval to remove the person to that place;

(2)  although that should not be interpreted as giving authority to detain a person for a purpose other than pending his removal from Hong Kong; and

(3)  that does not prevent a court, when applying subsection (4A), from determining that a person “has been detained for an unreasonable period”.

91.Subsection 32(4A) – which was amended to enhance transparency and unequivocal legal support to immigration officers in considering and determining the appropriate detention period, so as to conform to the Hardial Singh principles – 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.

92.It is also important to note that release on recognizance is the alternative to detention. This is made clear by section 36(1) of the Ordinance, which provides:

An immigration officer and any police officer may require a person –

(a)  who is detained under section 27, 32, 34, or 37ZK; or

(b)  who, being liable to be detained under any of those sections, is not for the time being so detained,

to enter into a recognizance in the prescribed form in such amount, with such number of sureties and subject to such conditions as the immigration officer or police officer may reasonably require or impose; and where a person who is so detained enters into such a recognizance he may be released.

93.Therefore, the relevant question whether to release a person on recognizance arises only when – and, if more than once, each time when – the person is detained, or when the person is liable to be detained but who is not for the time being so detained.

94.It is obviously not in dispute that section 32 confers discretionary executive detention powers which attract the application of the ‘Hardial Singh principles’. There is no challenge to the proposition that an initially lawful detention may be turned into an unlawful detention if it fails to meet the ‘Hardial Singh principles’. But a question perhaps triggered by Mr Parker’s first submission is at what point the ‘Hardial Singh principles’ come into play.

95.Instinctively, it might be thought that the Hardial Singh principles come into play only after a detention, and in considering whether a lawful detention has become unlawful because of a failure to meet those principles. Ordinarily, the point of applying the Hardial Singh principles is to identify when an initially lawful detention might have become unlawful in all of the circumstances, and as circumstances may vary over time.

96.By way of example only, HS1 – i.e. the Secretary/Director must intend to deport the person and can only use the power to detain for that purpose – is unnecessary if all it means is that the power to detain must be exercised for the purpose the power is granted. That is a basic principle of law. But the application of HS1 may arise if the original purpose of the exercise the power has changed in the circumstances, perhaps as a result of the application of HS2, HS3 or HS4.

97.But, even if it is assumed for present purposes – though I do not decide it – that the ‘Hardial Singh principles’ are applicable in advance of detention even commencing, it would in my view be in only exceptional cases that it would be possible to predict before exercising the power to detain that it must fail to comply with the Hardial Singh principles so that no detention should even commence. This case is not such an exceptional case.

98.It is, in my view, not reasonably arguable that the power to detain has been exercised arbitrarily in this case. To be fair to Mr Parker, his submissions do not go that far anyway. But, where a person who is subject to a deportation order, and who although on recognizance for a lengthy period has recently failed to report (albeit with an explanation), is then arrested for a serious offence involving violence apparently in the context of gang warfare, it could not be described as arbitrary for that person’s recognizance to be revoked and for him to be brought into detention for at least a period of time. Also in the mix in this case is that the hearing of the Applicant’s claims before the Board had been concluded almost 7 months earlier, and it might reasonably have been anticipated that the Board would give its decision soon, and potentially end the then remaining legal impediment to removal.

99.Those same matters seem to me to identify why it could not be said that the decision to revoke recognizance and to detain was unlawful. Insofar as Mr Parker seeks to rely on some broader requirement for reasonableness – that is, not simply the application of the Hardial Singh principles – before a power of detention is exercised, I do not think that helps him.

100.Further, in so far as the detention is challenged as being directly in breach of HS1 from the start, I reject that. I see nothing inappropriate in the Commissioner bringing to the attention of the Director that a person subject to a Deportation Order and currently on recognizance has been arrested in connection with a crime of serious violence. I reject the submission (although it was properly only reasonably tentatively put by Mr Parker) that the documents identify that the Police have in effect invited the Secretary/Director to use their immigration detention powers as a de facto means of denying the Applicant bail. Mr Parker further submits that, whether or not that was the object, that was clearly the effect. But I also reject that submission. Exercising immigration detention powers is simply not the same as denying bail, and does not trigger the court processes relating to the grant or refusal of bail. What it triggers is the application of principles – such as the Hardial Singh principles – which regulate the exercise of the discretionary power of executive detention.

101.In any event, the evidence identifies that the Applicant has been detained because it is intended that he be deported, and the power to detain is being used for that purpose.

102.The original detention of the Applicant on 24 June 2022 was lawful.

F.3  Was and Is Continuing Detention Lawful?

103.Of course, once detained, the power to detain must continue to be exercised reasonably, and (as stated) that is what triggers the Hardial Singh principles. Because of this application, the Court now stands as the primary decision maker, on the materials available to it, as to whether the detention has become unlawful.

104.The starting point is that the Applicant has been detained for a period of 49 days, a relatively short period of detention, against which the various other factors need to be weighed and balanced.

105.I accept that the Director is intent upon removing the Applicant at the earliest possible opportunity, and that he has acted with reasonable diligence and expedition to effect deportation. Further, because part of that diligence was to achieve an expedited determination of the appeal/petition by the Board, and to seek to expedite the hearing of the JR leave application, I think the position has been and now presently reached is that deportation could be effected within a reasonable time. That time (looking forward from now) is likely to be within the next three or four months, and it is that period which is to be brought into the balance.

106.Further, it can be noted that even Mr Parker describes the Form 86 which is the current basis of the JR leave application as being merely a “placeholder”. It is not inappropriate to take into account that the JR leave application does not presently jump out as one of significant merit, even if it would not be correct to assume it is of no merit at all so that the period of time to be taken for consideration of it is given no weight in the balance.

107.Much of the argument has turned on the question of the absconding risk and the security risk. They fall to be considered separately, although there is some room for element of overlap. Dealing first with the risk of absconding, I think a fair reading of the materials identifies that the Director has looked at that risk and sought to evaluate it, including by taking into account the Applicant’s family circumstances. I accept that the written explanation is not as detailed as it might be, and does not fully identify any consideration as to how the Applicant’s present family circumstances might impact upon the risk of absconding (in comparison, say, with the early period before he was a family man).

108.Exercising my own approach, I think it right to acknowledge that the Applicant’s present family circumstances point to a lower risk of absconding, even in light of the recent failure to report at around the time of the shooting incident when the Applicant learned that he was at least a person of some interest to the Police (when there are medical sick leave certificates which support his explanation for having failed to report until he voluntarily attended the police station on 23 June 2022).

109.As to the security risk, I do not accept that Mr Parker’s “both ways” point stand scrutiny. As a reminder, Mr Parker submits that either the suspicions against the Applicant are reasonable ones, in which case removal within a reasonable time is not going to be possible (because the Applicant will likely be prosecuted and may face a period of imprisonment), or else the suspicions are just that, mere suspicions which form a week basis for the assertion that he presents a security risk. But I do not think that is a fair either/or scenario. Particularly at the relatively early stage of investigations – where it seems that neither the gunmen nor the gun used in the shooting incident have been located – there must be some middle ground. Further, the prosecuting authorities and the Director exercising his discretionary powers of detention are not applying the same burden or standard of proof. They are engaged in different exercises. It seems to me to be perfectly possible to acknowledge that the suspicions are not sufficiently based on evidence as have led to any charge, or even any request for bail, whilst at the same time applying some appropriate weight to the fact of the suspicions in the context of a decision whether to detain pending deportation.

110.Nor do I think it correct to suggest, as Mr Parker does, that the Secretary and Director have simply delegated to the Commissioner any assessment of security risk. The Secretary and the Director have made their assessment on the basis of what they know. They know that the Applicant was arrested on suspicion of being involved with an offence of serious violence, and at some point was suspected of being the gunman’s protector. But they also know that the Applicant has been released, unconditionally and not on police bail, and has not been charged, though further investigations obviously continue. That must be enough information for them to be able to form an appropriate assessment of security risk, and I do not accept that they need to know the evidential basis for the Commissioner’s expression of concern. Of course, that the Commissioner has expressed the concern – a view originally unsolicited by either the Secretary or the Director – is also something which the Secretary and Director might take into account.

111.I acknowledge that there is at least some lack of clarity or precision in the varying use of language to describe the level or likelihood of the security risk, in the internal materials produced for the Secretary and the Director. But I do not think it fair to suggest that the Secretary or Director have described the risk as being greater than even the Commissioner has apparently described its ‘potentiality’. Indeed, that suggestion seems contrary to the suggestion that there has been delegation to the Commissioner. Rather, the Secretary and the Director are not only entitled but obliged to form their own view as to the relevant risk, and that view need not necessarily be the same as that of the Commissioner (who is not tasked with precisely the same exercise as is being conducted by the Secretary and the Director).

112.In any event, when the Commissioner’s assessment is that the Applicant “potentially poses a security concern” should he be released on recognizance so that releasing him “may lead to further violent incident”, that is the identification of a risk – a concern that potentially arises, an incident that may happen. It then falls to the Secretary and the Director to assess the likelihood of risk and the potential consequences of risk.

113.I acknowledge that some of the language identifies a ‘risk of a risk’, but that is to an extent a reflection of the need to look both at the likelihood that the risk will eventuate and the potential consequences if the risk does eventuate.

114.In this case, on what is available from the information, I think it fair to say that the likelihood that the risk will eventuate is relatively low. But the potential gravity or seriousness of the consequences if the risk eventuates seems to me to be rather high. It is those assessments which must be taken into the balancing exercise.

115.As to the family circumstances, I think it must be acknowledged that the impact of the Applicant’s sudden detention after a lengthy period on recognizance (for almost all of the length of the Applicant’s marriage to his wife) would be significant. The medical evidence relating to the impact on the wife has been provided.

116.I also accept that, where the Applicant is the primary caregiver for the two children, the impact of his detention on the children is also not insignificant. In his affirmation, the Applicant expresses his concern that his sudden and continuous detention would cause irreversible trauma and damage to his sons’ mental health and well-being. (As an aside, I find that statement somewhat difficult to reconcile with the decision to bring the two young sons into the court room yesterday, to see their father in the dock between correctional service officers, with his immediate future being discussed amongst a group of people wearing the wigs and robes applicable in the formality of an open court hearing. After I questioned their presence, and adjourned for a few minutes for Mr Parker to take instructions, the children left the court room.)

117.I acknowledge that there is some force in Ms Ngai’s submission that the weight to be given to family considerations may not be great where the Applicant is expected to be removed from his family in Hong Kong anyway. But, I agree with Mr Parker that that submission cannot be taken too far. In any event, the particular weight to be given to family considerations is specific to the circumstances of any individual case. In this particular case, the impact on other family members is of some significance, and must be taken into account.

118.As to the Applicant’s medical condition, I acknowledge that his preferred treatment or recovery regime has been interrupted. But I do not accept that he is presently unable to obtain appropriate medical treatment whilst in detention.

119.Every case involving a deprivation of liberty requires anxious scrutiny, in what is often a difficult balancing exercise. I have focused on:

(1)  the length of the period of detention, which is not long, at 49 days;

(2)  the nature of the obstacles which stand in the path of the Director preventing a deportation, being (previously) the outstanding decision from the Board and (now) the JR leave application, which does not presently jump out as an application of great merit, and which I think can reasonably be determined within 3 to 4 months;

(3)  the diligence, speed and effectiveness of the steps taken by the Director to surmount such obstacles, including in his seeking to expedite those proceedings (and to obtain the relevant travel document to permit repatriation);

(4)  the conditions in which the detained person is being kept, specifically by reference to his medical condition and needs;

(5)  the effect of detention on him and his family, which is clearly of some real and significant adverse impact;

(6)  the risk that if he is released from detention he will abscond, which I think is relatively low; and

(7)  the danger that, if released, the Applicant will pose a security risk, which is not particularly high or even though, but which risk if it eventuates would give rise to grave and serious consequences.

120.Balancing those various factors, I have reached the conclusion (in agreement with the Secretary/Director) that the Applicant’s detention so far is under lawful authority and remains lawful as being Hardial Singh compliant.

121.In the circumstances, the application for writ of habeas corpus is dismissed.

122.I reserve the question of costs, and any relevant assessment of costs on a summary basis, to written submissions which can be provided on a timetable agreed between the parties and notified to the Court.

Mr Timothy Parker and Mr Josh Baker, instructed by Daly & Associates, for the applicant

Ms Karen Ngai, Senior Government Counsel (Ag.), of the Department of Justice, for the respondents