Malik Kamran v. Director of Immigration

HCAL 1133/2022

[2022] HKCFI 3474

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1133 OF 2022

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BETWEEN

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Before: Hon Coleman J in Court

Date of Hearing: 17 November 2022

Date of Decision: 17 November 2022

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D E C I S I O N

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A. Introduction

1.The Applicant is the subject of a Removal Order issued on 26 August 2014. He has been held in immigration detention since 18 April 2020 pending his removal. To the date of hearing, the period of detention has lasted 944 days, or 2 years and 7 months.

2.On 24 October 2022, the Applicant applied for writ of habeas corpus on grounds identified in his supporting affirmation.

3.I then gave directions to bring this matter to today’s hearing. Directions were also given for the filing and serving of an ‘initial response’ by the Respondent. Leave was also granted for the Applicant to file a reply, but none has been filed.

4.At the hearing, the Applicant appeared in person (with the benefit of an Urdu interpreter).

5.The Director was represented by Ms Hikki Wong, Senior Government Counsel, who signed the initial response/skeleton argument upon which she relied at the hearing.

6.Relevant to this application was a decision due from another judge of the Court of First Instance (“CFI”): see, further, below. As that decision was – coincidentally – fixed to be handed down at 3.30pm today, I heard the main part of the submissions on this application this morning, and I then adjourned the hearing until 4pm, for me to be able to take the content of that other decision into account in reaching my decision.

7.This is my Decision.

B. Background Facts

B.1 Immigration Status

8.The Applicant is a Pakistani national. He first entered Hong Kong in March 2003 and was permitted to stay for 14 days. He did not depart within his limit of stay and has since 9 April 2003 been overstaying in Hong Kong. He was arrested for overstaying by the Police in 2007.

9.As said, a Removal Order was issued against him on 26 August 2014. The Removal Order was issued pursuant to section 19(1)(a), which authorizes issuance of such an order to a non-Hong Kong permanent resident who has been considered an undesirable immigrant.

B.2 Criminal record and absconding record

10.During his stay in Hong Kong, the Applicant has been convicted and sentenced for the following offences:

(1) On 10 January 2014, he was sentenced for 4 months less 32 days of imprisonment for breach of condition of stay.

(2) On 21 March 2014, he was sentenced to 8 months’ imprisonment for possession of a dangerous drug.

(3) On 24 August 2016, he was sentenced to 8 months’ imprisonment for possession of a dangerous drug.

(4) On 7 April 2017, he was sentenced to 5 years’ imprisonment for trafficking in a dangerous drug.

11.The Applicant has the record of failing to report recognizance thrice and jumping court bail twice.

12.In respect of jumping court bail:

(1) He jumped court bail on 9 December 2011 and had absconded for over 2 years until he was arrested by Police for possession of a dangerous drug on 6 January 2014.

(2) He jumped court bail again on 29 January 2016 and had absconded for more than 6 months until he was arrested again, also for possession of a dangerous drug, on 10 July 2016.

13.Among his 3 occasions of failing to report recognizance, 2 of them occurred during the period of absconding after he had jumped court bail. The other occasion occurred in 2008.

B.3 NRC and JR

14.The Applicant first lodged a torture claim in 2007 which came to an end in 2011 when his application was refused and then his petition against the refusal also failed.

15.After the Unified Screening Mechanism was implemented and grounds other than torture risk became available, the Applicant lodged a non-refoulement claim (“NRC”) in 2014. His NRC was rejected by the Director on 18 May 2018. The NRC had taken 4 years to resolve at least partly because the Applicant did not pursue his claim for some periods and became uncontactable. He only approached the Director again to re-open his NRC in 2018.

16.Under the applicable rules of the Unified Screening Mechanism, the Applicant had by 5 June 2018 to appeal to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”), if he was minded to do so. But he only filed his Notice of Appeal to the Board on 18 November 2019, about 17 months out of time. On 2 April 2020, the Board refused an extension of time for the Applicant to lodge an appeal (“Board Decision”).

17.On 20 June 2020, the Applicant sought leave from the CFI to judicially review the Board Decision. The CFI dismissed the application on 28 June 2022.

18.The Applicant did not appeal against the CFI’s refusal to grant leave within the statutory 14-day time limit. In his oral submissions, the Applicant explained that the delay was caused by his not having any legal assistance. On 24 October 2022, he filed with the CFI a summons for extension of time to appeal.

19.At 3.30pm on today, the CFI Judge handed down his decision, [2022] HKCFI 3391, on the time extension summons. The CFI Judge refused to extend time for the Applicant to file his notice of appeal, and accordingly dismissed his application. In doing so, and after noting the procedural history and the points made by the Board in the Board Decision, the CFI Judge noted that the Applicant had failed to raise any valid reason to show that there is any realistic prospect of success in his intended appeal.

B.4 Periods of Detention and Reviews

20.Prior to the present detention, the Applicant was subject to two brief periods of detention under various sections of the Ordinance, each lasting one month: (a) from 28 June 2007 to 28 July 2007 and (b) from 15 August 2014 to 16 September 2014.

21.The present detention commenced on 18 April 2020 upon his discharge from imprisonment after serving his sentence for trafficking in a dangerous drug. He has since then been detained under section 32(3A) pending his removal. Section 32(3A) 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.

22.His detention has been reviewed 14 times during the currency of the present detention. Continued detention was recommended on each of the occasions. On the last review, the grounds for detention were given that (a) the Applicant’s removal is going to possible within a reasonable time; (b) he poses or is likely to pose a threat or security risk to the community; (c) he may abscond and/or (re)offend; (d) he does not have close connection or fixed abode in Hong Kong; and (e) there are no other circumstances in favour of his release.

23.In the detail of that review, the Assessment and Recommendation were as follows (underlining in original):

Assessment and Recommendation

2. Notwithstanding subject has been detained for over 30 months since 18-04-2020, it is assessed that the Director has exercised due diligence to effect deportation. Regarding his application for leave for judicial review in relation to his non-refoulement claim, the CFI held that subject failed to show that he had any realistic prospect of success in the proposed judicial review and it was dismissed on 28-06-2022. Though subject filed a summons on 24-10-2022 for extension of time to appeal against the refusal decision by the CFI, assistance from the High Court was sought on 03-11-2022 to accord priority to the said application. Meanwhile, according to the latest information from the Judiciary’s court diary, the High Court will hand down judgement for the said judicial review case on 17-11-2022. There is no sufficient reason to believe that his judicial review could not be finalized in a reasonable foreseeable future. In respect of subject’s re-entry seeking, close liaison has all along been maintained with the PAK CG. Despite that subject refused to provide information about his family members in Pakistan as required by the PAK CG for identity verification, which directly or indirectly prevented or delayed his deportation, PAK CG confirmed that the relevant document had been sent to the authority in Pakistan and the verification would be completed within 2 to 3 months. Besides, PAK CG promised they would accord priority for this case. In this premises, it is believed that subject’s re-entry to Pakistan could be secured within a reasonable period of time.

3. Subject is liable to have a deportation order for life made against him on the basis of his criminal convictions as stated above. Subject was convicted of a total of 4 counts of criminal offences between 2014 and 2017, namely “Breach of Condition of Stay”, “Possession of a dangerous drug” (2 counts) and “Trafficking in a dangerous drug”. The said offences are considered to be serious as are deportable offences under section 20 of the Ordinance. Subject has been sentenced to periods of imprisonment for his convictions, in total exceeding 6 years of imprisonment. Furthermore, after his previous release on recognizance, subject had failed to report for recognizance on 3 occasions and jumped bail on 2 occasions. In particular, subject went underground for 2 years from December 2011 to January 2014 until he was re-arrested by the Police for the suspected offence of “Possession a dangerous drug”. Similarly, on the latest occasion in 2016, subject went underground until he was arrested by the police for the suspected offence of “Possession a dangerous drug”. Coupling with the fact that subject did not have any family connection and local ties in Hong Kong, the risk of absconding and/or re-offending is assessed to be high given subject’s previous adverse record. There is a real risk that subject would likely pose a threat to the local community if released on recognizance. The potential gravity of offence(s) committed, if subject is released, is not a low one as supported by his previous convictions and sentences imposed by the Court.

4. Subject’s comments on the treatment condition during detention has been taken into consideration, but such factor does not outweigh the factors against release of subject as stated above.

5. Having considered all relevant circumstances and balancing all the factors including the long period of detention of subject for over 30 months, it is considered that this case is not a warranted one for release on recognizance in lieu of his detention under section 32(3A) of the Ordinance pending his deportation from Hong Kong.

24.The further review by officers in ascending order of seniority read as follows:

SIO(RAL)RD21

Subject has been detained for over 30 months since 18-4-2020. As a repeated and serious crime offender, there is a real risk of his re-offending and/or absconding if released on recognizance as supported by his previous conviction and abscond/jump bail record. Notwithstanding that subject’s JR case is still under processing, assistance from the Court has been sought to accord priority for the case and the judgement will be handed down on 17-11-2022 according to the latest information from the Court. As for subject’s re-entry seeking, active liaison have all along been maintained with local PAK CG. Given PAK CG confirmed that verification of identity could be completed within 2-3 months, should his JR case be finalized and his re-entry be secured, arrangement will be made to effect deportation as soon as practicable in a reasonable foreseeable future. Having considered and balanced all circumstances of the case, it is supported that this is not a case warranting release on recognizance as per case officer’s recommendation at para 2-5.

CIO(RAL)RD3

Subject has been detained or over 30 months since 18-4-2020. Subject is a serious and repeated crime offender with heavy sentence imposed by Court. In respect of the judicial review application filed in late Oct 2022, Court’s assistance to accord priority to the said case had been sought and judgement will be handed down on 17-11-2022. Moreover, active liaison with Pakistani Consulate was made for the issuance of travel document despite subject’s uncooperativeness. There is no sufficient reason that subject’s deportation could not be effected the in foreseeable future. Having considered and balanced the relevant circumstances and factors of the case, including the time of detention & condition of detention, I am of the view that this is not a case warranting release of subject on recognizance.

APIO(RAL)3

This PAK male has been detained for over 30 months since18-4-2020. Regarding his JR case, the Court has indicated that a judgement would be handed down on 17-11-2022. Regarding his re-entry to PAK, the PAK CG has also indicated that verification of his re-entry to PAK could be provided in 2 to 3 months. As such, there is no indication that subject’s removal could not be efficient in a reasonable foreseeable future. Subject is a repeated offender with continuous relating to dangerous drugs. In particular, he was sentenced to 5 years’ imprisonment for trafficking in a dangerous drug. He also has absconding/jumping bail record. It is considered that there is a real risk of his re-offending and absconding if released and gravity of which is certainly not a low one. All things released, it is supported that this is not a case warranting release on recognizance, please.

PIO(RAL)

I am aware that subject has been detained since April 2020 for over 30 months. At the present stage, the court has already indicated that judgement for his JR would be ready on 17.11.2022, while CG also confirmed re-entry would be ready in 2-3 months. The prospect of removal is clear with real sense of time scale. As for risk of absconding and re-offending, two distinct factors, if subject is released, I consider both risks are high, having taken into consideration for previous absconding and criminal history, with the longest absconding period. Over 2 years and most serious offense of trafficking DD imprisoned for 5 years. I am mindful that the risks of absconding and re-offending has to been carefully considered when the period of detention has become longer over time. Taking their comments on the detention treatment, his self-inflicted obstacles on obtaining re-entry, officer’s diligence to remove all obstacles, etc, having all been considered, as well. Having balanced all relevant factors, particular in mind the period of detention, I consider this is not a case warranting release on recognizance. He has to be removal asap.

B.5 Steps towards Removal

25.The obstacles standing in the way of removal are mainly (a) the Applicant’s extant JR proceedings and (b) his expired passport which needs replacement.

26.As for the JR proceedings, the Department of Justice (“DoJ”), on behalf of the Director had, by letter dated 12 April 2022, urged the Court to accord priority to the Applicant’s case. Apparently, some priority was accorded as a result and the Applicant’s leave application was refused on 28 June 2022.

27.After he had filed a summons seeking an extension of time to appeal against the CFI refusal, the DoJ had also by letter by dated 3 November 2022 invited the Court to accord priority to the Applicant’s case. As already identified, the time extension summons was dealt with by decision handed down today.

28.In respect of the Applicant’s expired passport, the Director has been in active liaison with the Consulate General of the Islamic Republic of Pakistan (“Pakistan CG”) concerning the issuance of a replacement travel document. The Applicant has not been cooperative in going through the necessary formalities in obtaining a replacement. For example, he refused to provide contact details of family in Pakistan for verification of his identify or to attend an interview with the Pakistan CG.

29.As of 28 October 2022, the Pakistan CG agreed to accord priority to the Applicant’s case and estimated that it would take about 2 to 3 months for verifying the Applicant’s identity. The Court is not informed of any estimation as to when a replacement travel document could actually be issued.

C. Applicable Principles

30.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.

31.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.

D. Applicant’s Submissions

32.The Applicant exhibited 6 pages of handwritten notes together with copy of various documents to his affirmation.

33.His handwritten notes appear to reveal the following grounds in support of his application. Many of those grounds are attempts to rebut the Director’s grounds recommending continued detention, as disclosed to him in the “Notice of Review of Detention” forms served and interpreted to him after each review of detention was conducted:

(1) He emphasized that he had been detained for a very long time – 27 months (which should be 31 months by the date of the hearing). The period of detention has become unreasonable.

(2) It is unhelpful to talk in terms of what risks may materialize in the future e.g. he may abscond or that he poses security risk to the society. In any event, he said he has never escaped from custody and had never committed crimes of a violent nature.

(3) He could provide fixed abode to enable the Director to locate him easily. He has friends in Hong Kong who are permanent residents and who can provide him with a fixed abode. (But there are no particulars to as the identities of the friends or how they could provide him with a fixed abode).

(4) He queried what the “other circumstances” favouring his release might be.

34.The other matters set out in the handwritten notes concern the detention conditions inside the Tai Tam Gap Correctional Institution (“TGCI”), where he has been detained:

(1) He is in poor medical condition and is unsuitable to be detained. He said he could not have the necessary medical attention he needed. He said TGCI is far away from the hospital and he recalled an occasion where it took an hour for him to be sent to the Tuen Mun Hospital. He could not have the necessary medical attention he needed in TGCI.

(2) He exhibited copy of a consultation note dated 4 October 2019, issued by the Hospital Authority, showing that he had been referred for consultation for “right hand and left tremor” and CT scan of the brain and thyroid had been booked. The CT scan was then conducted as shown in a CT scan report dated 24 May 2021 also issued by the Hospital Authority.

(3) The conditions in TGCI are bad. He complained about the quality of and lack of variety in the food and drinks provided to him. His activities are monitored by CCTV which intrude into his privacy. He had to wear electronic tags round the clock, making it very uncomfortable during sleep.

(4) He has been detained in TGCI as if he is a convicted prisoner with the same prison rules applying to him.

(5) When a detainee gets infected with Covid-19, he will be transferred to the Stanley Prison for quarantine. Stanley Prison is a “Category A prison”, and being detained there would carry with it some stigma.

35.In respect of his detention conditions in TGCI, Ms Wong made the following submissions in her initial response:

(1) TGCI, being a site specified in the Schedule to the Prison Order Cap 234B, is an authorized place of detention under Schedule 1 to the Ordinance.

(2) All detainees in TGCI are provided with food and water in accordance with their dietary needs, health conditions and religious belief.

(3) A smart wristband is provided to every detainee. The wristband serves as identity proof and is essential for their daily life. It also contains an emergency button which allows detainee to notify duty staff for assistance.

(4) 24-hour basic medical services are provided in the sick bay of TGCI by medical officers seconded from Department of health and correctional officers with nursing qualifications. Medical consultation would also be arranged at the hospital inside TGCI if needed. The detainee could also be transferred to public hospital if recommended by medical officers.

36.In the oral hearing, the Applicant made further submissions, which he had prepared by further handwritten note. As that note was written in Urdu, the interpreter gave an oral interpretation of the submissions. In them, the Applicant made the following points (in my summary of them):

(1) He is concerned that the Immigration Department might have sought to interfere in the matters of the Court, by requesting priority to be accorded to his case, which priority appears to have been given.

(2) He is also concerned that the decision in his case HCAL 1237/2020 was fixed to be handed down on the same day that this habeas corpus application has been fixed to be heard.

(3) He has been in detention for the lengthy period of 31 months, approaching 1,000 days.

(4) But the Immigration Department has not had sufficient time to decide his case.

(5) He is in poor health, which he hopes would improve if granted freedom by release on recognizance. He has suffered a lot and continues to suffer.

(6) He promises that he would not commit crimes similar to those committed by him previously.

(7) He will file a further case very soon, and notified the Director as soon as possible. That further case will be either to pursue the appeal if the CFI grants him further time to do so, or to take the matter to the next step if the CFI refuses him that further time.

(8) He has a guarantor, and has provided the name, Hong Kong permanent identity card number and telephone number of that guarantor.

(9) He would obey any requirements or instructions given as conditions of his release on recognizance.

37.As to the first two points, there is clearly nothing improper in the Director or the DOJ on his behalf informing the Court that the Applicant is currently held in detention, and inviting the Court accordingly to give priority to determination of his case. Indeed, precisely because the Applicant is held in detention, that is the right thing for the Director or the DOJ on his behalf to do. Further, as I informed the Applicant during the hearing, the fixing of the handing down date for his decision in the other case was entirely separate of my own fixing of today’s date for the hearing of his habeas corpus application. At the time I gave directions to bring the matter to hearing today, I was unaware of any potential handing down of the other decision. At these matters are, therefore, of no relevance to the current application.

38.However, I will bear in mind all the other matters in my analysis below and mention them as appropriate.

E. Merits of Application

39.The central question for this habeas corpus application is whether the period of detention has become too long and thus unlawful by the time of assessment. It is not for this Court to determine whether the Applicant should be allowed to stay in Hong Kong, which is the question to be answered in his NRC related proceedings. It is also not for this Court to examine the detention conditions in their own rights to see if any public law challenge could be mounted. That said, the conditions of detention are relevant in the current enquiry in that it is one factor against which the total length of detention must be balanced.

40.As this Court has emphasised in its recent judgments for habeas corpus applications, the importance of the conditions of detention is not to be overlooked. In assessing whether the period of detention has become too longer, the Court has to balance (a) the gravity of any risks arising from release against (b) the deprivation of liberty. The magnitude of the deprivation of liberty primarily turns on the length of the period of detention, but the conditions of detention are also a measure of how much a detainee has been deprived of his liberty. The more severe the restraints placed upon the detainee, the deeper the intrusion into personal liberty.

41.Detention carries with it restriction on an individual’s personal liberties in various forms, beyond being physically restrained to one geographical space. Being confined to a physical location managed by the authority necessarily means that the various aspects of day-to-day life would also restricted, e.g. daily schedule, clothing, food, access to communication with other people, work, education, entertainment, healthcare, etc. In all these aspects, a detainee is no longer able to do as he pleases.

42.Naturally, some restrictions may amount to deeper intrusion into a person’s personal liberty, whilst other restrictions may be seen as no more than minor inconvenience. But as time passes by, even what starts as a minor inconvenience may accumulate and culminate in a not insignificant deprivation of personal liberty. In one sense, this serves to highlight the importance of the length of detention, since time would gradually exacerbate however minor the restrictions imposed upon a detainee.

43.I have no difficulties in finding that HS1 and HS4 are satisfied. The Director does intend to remove the Applicant and is only using the power to detain for those purposes. The Director has also acted with reasonable diligence and expedition to effect removal. Of the 2 years and 7 months’ detention, I recognize that for around 2 years the obstacle to removal had been the Applicant’s pending JR leave application. But I do not think the Director could be criticized for thinking that the leave application could be disposed of reasonably quickly given the apparent lack of merit in the case. Nor should the Director be criticised for only writing to request the courts to accord priority in April 2022, given that this is a relatively new practice developed from the proliferation of habeas corpus applications this year.

44.However, having considered all the circumstances of the case, I have come to the view that HS2 and HS3 are not satisfied.

45.In her oral submissions, Ms Wong acknowledged that the period of detention was “not particularly short”. However, to my mind, the period of detention – 2 years and 7 months, or 944 days – is undoubtedly and more properly described as very long. That length of detention is of paramount importance as a factor on its own in measuring the depravation of liberty suffered by the Applicant. It is the starting factor against which the other factors have to be measured, weighed and balanced. The length of detention also has the cumulative effect of all other aspects of the detention, both minor or major, whilst the Applicant has been detained.

46.I agree with the Director that, given the Applicant’s record of criminal convictions and absconding, the risk of his re-offending or absconding upon release on recognizance is very real and perhaps substantial. But I think it relevant to recognise that the previous offences did not involve violence, even though at least the trafficking of drugs conviction is properly regarded as very serious as reflected in the sentence imposed.

47.I also recognize that the Applicant has not been pursuing his NRC with diligence. Indeed, his appeal to the Board and seeking leave from the CFI were both substantially out of time. I note that the CFI’s decision today was in part based upon the lack of underlying merits, so that any renewed application does not seem likely to have significant merit either, even if brought in proper time. This is one case in which some weight can properly be given to the likelihood that a further step will be taken which will create a continued legal impediment to removal, but that the further step is not based on any strong merit foundation.

48.In any event, even as of now, it seems that removal would not be possible for a period at least measured in months – realistically, a minimum period of three months. This is the result of the passport problem alone (though I take into account that it is to an extent self-inflicted by the Applicant’s lack of cooperation).

49.It is also correct to note that the analysis conducted by the recommending and reviewing immigration officers in this case – see in particular the last review, the details of which I have set out in full above – demonstrates a proper analysis catering to the individual circumstances of this particular detainee at the time of the review, seeking to approach the proper balance to the various relevant factors. I acknowledge that it might be appropriate for the Court to place some significant weight on this kind of robust analysis.

50.However, in the careful scrutiny of all of the matters and factors canvassed above, and in the balancing exercise, I am ultimately persuaded that the factors which might point in favour of continued detention do not outweigh the very substantial period he has been detained and the current likelihood that the removal of the Applicant cannot be effected within the reasonably foreseeable future, as measured against that period.

51.In those circumstances, I conclude that any further detention of the Applicant would be unreasonable, and hence unlawful in accordance with the Hardial Singh principles.

F. Result

52.For the above reasons, I order that – pursuant to RHC Order 54 rule 4 and/or the inherent jurisdiction – the Applicant should be released from detention on terms of recognizance acceptable to the Director.

53.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 respondent