Balkar Singh v. Director of Immigration

HCAL 939/2022

[2022] HKCFI 3065

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 939 OF 2022

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D E C I S I O N

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A. Introduction

1.The Applicant is currently held in immigration detention, pending his removal from Hong Kong pursuant to a Removal Order made on 8 June 2016.  He is, therefore, held pursuant to section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”). The present period of detention commenced on 8 June 2022, and to date has lasted 121 days, about 4 months.

2.On 14 September 2022, the Applicant applied for writ of habeas corpus, on the ground that his detention is or has become unlawful.

3.I gave directions for the matter to come to today’s hearing.  Those directions included for the Respondent (“Director”) to provide an initial response to the application, and for the Applicant to have leave to file a reply to that initial response.  The initial response was filed, but the Applicant has not filed any reply.

4.At the hearing, the Applicant has appeared in person (with the assistance of a Punjabi interpreter).

5.The Director was represented at the hearing today by Ms Karen Ngai, Government Counsel, who placed reliance on the initial response/skeleton argument previously filed by Ms Hikki Wong, Senior Government Counsel.

6.This is my Decision.

B.      Background Facts

B.1    Immigration Status

7.The Applicant is an Indian national.  He landed in Hong Kong on 6 May 2015 and was permitted to stay as a visitor until 20 May 2015.  He overstayed and surrendered himself to the Immigration Department (“ImmD”) on 21 May 2015.

8.As stated, he is now subject to a Removal Order issued on 8 June 2016. The Removal Order was issued under section 19(1)(b) of the Ordinance.  It has remained in force throughout.

9.The power to detain pending removal under such a removal order is to be found in section 32(3A) of the Ordinance, which provides:

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

B.2    NCR and JR

10.The Removal Order has not been executed so far because the Applicant raised a non-refoulment claim (“NCR”) on 24 November 2015. The NCR was rejected by the Director on 7 December 2016 and by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) on 26 January 2018.

11.Having exhausted all the administrative avenues, the Applicant on 5 February 2018 sought leave to challenge the Board’s decision by way of judicial review.  The Applicant lost all the way up to the Court of Appeal (“CA”), which rejected his application for leave to appeal to the Court of Final Appeal (“CFA”) on 4 April 2019.  There were some further attempts to seek leave from the CFA itself but the Applicant withdrew the relevant application on 16 March 2020.

12.On 24 December 2020, the Applicant attempted to resurrect his NCR by requesting to file a subsequent claim (“SubC”). The Director rejected that request on 7 September 2021.  Then, on 24 September 2021, the Applicant then sought leave to judicially review the Director’s refusal.  On 2 December 2021, the Court rejected that leave application and imposed a Restrictive Proceedings Order (“RPO”) to prohibit the Applicant from commencing any fresh proceedings relating to his NCR unless leave is first granted by the High Court for him to do so.

13.By the time the present detention started on 8 June 2022 and throughout the entire period, there has been no extant NCR or related legal proceedings.  As it now stands, the only outstanding legal proceedings comprise this habeas corpus application.

B.3    Periods of Detention and Reviews

14.Prior to the present period of detention, the Applicant was subject to a brief period of detention from 25 May 2016 to 22 June 2016 under section 32(2A) and section 32(3A) of the Ordinance.  He was released on recognizance on 22 June 2016.

15.On 8 December 2021 – shortly after the making of the RPO, which effectively ended the further pursuit of his NRC – the Applicant failed to report recognizance.  He was not intercepted until 8 June 2022, i.e. 6 months later.  His recognizance was thus revoked, marking the beginning of the present detention.

16.Since the present detention commenced on 8 June 2022, the Director has reviewed the Applicant’s detention on 28 July 2022 and on 28 September 2022 respectively.  On each occasion, the Director had recommended continued detention.  The grounds are: (1) the Applicant’s removal is going to be possible within a reasonable time; (2) he may abscond and/or reoffend; (3) he does not have close connection or fixed abode in Hong Kong; and (4) there are no circumstances in favour of his release.

17.The reference to reoffending refers to the Applicant’s two previous records of conviction, one of overstaying and one of taking up unapproved employment in breach of his conditions of stay.

B.4    Steps towards Removal

18.The Applicant still holds a valid passport.

19.Although the Applicant has consistently expressed his unwillingness to return to India whilst he was detained pending removal, ImmD moved to arrange for his repatriation.  ImmD has already booked a seat on a repatriation flight to India scheduled on 17 October 2022.

C.      Grounds of application

20.The Applicant’s grounds are set out in the first page of the documents exhibited to his supporting affirmation, which states:

1.  I Balkar Singh [detainee no. 3004-18] c/o Castle Peak bay Immigration centre, 84, Castle Peak bay Road, Tuen mun, New Territories, Hong Kong. Solemnly and sincerely affirms as follows:

(1)  The present detention is unlawful.

(2)  I have been detained since 8 June 2022 til now and it is almost 3 months. I am now detained under s 32 i.e. pending for removal.

(3)  I wish to stay in Hong Kong until all the claims are completed.

(4)  My USM Claim is at 2^nd JR stage.

(5)  I should not leave Hong Kong until it is completed.

(6)  I am presently detained pending for non-refoulement claim and not pending removal. It is possible to remove me within a short reasonable period.  Therefore, the present detention is unlawful.

(7)  I shall not run away.

(8)  I cannot go back to my home-country because I have real risk of my safety.  My life is in danger in my country.  I beg to stay please issue of a writ of Habeas Corpus for my release from detention.

(9)  I can only speak Punjabi and please arrange Punjabi interpreter for my hearing.

21.As the chronology indicates, the so-called “2^nd JR” had in fact already been rejected more than 6 months before the present detention commenced, or more than 9 months before this habeas corpus application was made.  

22.Of course, the error may reflect the fact that the Applicant does not have a high level of English language ability.  But, I think it also clear that the error has likely arisen also from the fact that the Applicant’s stated grounds are now recognizable ‘boiler-plate’ grounds, which can be found in and copied across numerous recent habeas corpus applications.  It is also an unfortunate mark of what might be called the ‘NRC industry’ that it appears to be widely understood that if a non-refoulement claimant fails in his NRC and subsequent attempted JR, there will simply follow a request for a SubC and a “2^nd JR”.

23.The rest of the documents exhibited to the Applicant’s affirmation explain why he does not want to return to India.  These would be relevant to his dismissed NCR, rather than the lawfulness of his current detention.  It is a misunderstanding to think that a habeas corpus application raises the issue as to whether or not the Applicant should be removed from Hong Kong to India.  This application is concerned with the central question as to whether or not it would be lawful to continue to detain the Applicant pending, that is until, his removal.

24.At the hearing, the Applicant made oral submissions, but they were also focused on his NRC, and he stated that the removal of the RPO was his only request so that he could prove him his claim. As I have pointed out elsewhere, this application is not concerned with the merits of the NRC, and a habeas corpus application is not a means to seek to get around or overturn a RPO.

D.      Applicable Principles

25.In its 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.

26.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.

E.      Merits of Application

27.Despite the fact that the Applicant has not really addressed the lawfulness of his detention or its continuation, the burden in this application falls on the Director to show lawfulness.

28.The Removal Order issued against the Applicant is valid and extant.  The detention of the Applicant under section 32(3A) of the Ordinance clearly provides prima facie lawful authority to detain the Applicant pending removal.  The question raised by this application is whether the detention has become unlawful, as a result of the period of detention becoming unreasonable in all the circumstances – when looking at the Hardial Singh principles outlined above.

29.Ms Ngai submits that the detention of the Applicant has been reasonable at each stage, and throughout the entire 121 days. Having carefully considered the circumstances, I agree.

30.First, the Director does intend to deport the Applicant and is only using the power to detain for that purpose.  The Director intends to remove the Applicant as soon as possible.  Throughout the period of the present detention, there has been no legal impediment to the Applicant’s removal and he holds a valid passport.  The Director has already arranged a repatriation flight to effect removal next week.  HS1 is satisfied.

31.Secondly, the Director has acted with reasonable diligence and expedition to effect removal, evident by the booking of a repatriation flight within a reasonably short time.  HS4 is satisfied.

32.Thirdly, there has been no extant NCR or related judicial review proceedings at any point in the present period of detention. All the NCR or SubC related proceedings had already come to a halt by 2 December 2021 when the Court refused him leave to challenge the Director’s decision not to allow him to file the SubC, and imposed the RPO.  In the circumstances and where the Applicant was in possession of a valid travel document and efforts were made to secure a repatriation flight, the Director was correctly of the view that the Applicant could likely be removed within a reasonable period of time.  HS3 is satisfied.

33.I also consider that there is a reasonably high risk of absconding exists given that he has a record of absconding for 6 months, notably immediately after his NRC came to an effective end upon the making of the RPO.  Absconding risks frustrating the purpose of detention – repatriation, which is imminent in this case.

34.Balancing matters overall – and keeping in mind that the period of detention to date is 121 days and a repatriation flight is scheduled in 10 days’ time – I have no difficulty in concluding that the Applicant has been detained, and will likely be further detained, only for a period that is reasonable in all the circumstances.  Albeit upon his repatriation, the period of detention will cease in a matter of a few days. HS2 is satisfied.

F.      Result

35.The Applicant continues to be lawfully detained. The Applicant’s application for writ of habeas corpus is, therefore, dismissed.

36.I make no order as to costs.

The applicant, acting in person

Ms Karen Ngai, Government Counsel, of the Department of Justice, for the respondent