Bains Charanjit v. Hong Kong Sar Government and Another
Read the full judgment text of HCAL 1184/2022 on BabelCite. This High Court CFI judgment was delivered on 19 December 2022.
1. The Applicant is the subject of a Deportation Order made on 16 February 2022. He is currently held in immigration detention pending removal from Hong Kong. The period of detention commenced on 9 February 2021.
Cited by 5 cases · Cites 1 case
|
HCAL 1184/2022 [2022] HKCFI 3772 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1184 OF 2022 ________________________ BETWEEN
________________________ Before: Hon Coleman J in Court Date of Hearing: 19 December 2022 Date of Judgment: 19 December 2022 Date of Reasons for Judgment: 21 December 2022 ________________________ R E A S O N S F O R J U D G M E N T ________________________ A. Introduction 1.The Applicant is the subject of a Deportation Order made on 16 February 2022. He is currently held in immigration detention pending removal from Hong Kong. The period of detention commenced on 9 February 2021. 2.On 1 November 2022, the Applicant applied for writ of habeas corpus on grounds identified in his supporting affirmation. He named the HKSAR Government and the Director of Immigration (“Director”) as the Respondents to the application. I gave directions to bring this matter to a hearing on 19 December 2022, after the provision of the Respondents’ Initial Response/Submissions. 3.By the date of that hearing, the period of detention had lasted 679 days, or around 1 year and 10 months. The Applicant has been detained under various provisions of the Immigration Ordinance Cap 115 (“Ordinance”). He is presently detained under section 32(3) of the Ordinance. 4.At the end of the hearing, I dismissed the application for reasons to be handed down later. These are my Reasons for Decision. B. Background Matters B.1 Immigration Status 5.The Applicant is an Indian national, born on 30 December 1963. 6.The Applicant came to Hong Kong as a visitor on 21 August 2005 and was permitted to stay until 23 August 2005. However, on 22 August 2005, the Applicant applied for extension of stay and reported loss of his Indian passport. He was required to report to the Immigration Department (“ImmD”) on 23 August 2005 but failed to appear, and he has overstayed in Hong Kong since 24 August 2005. 7.On 24 May 2006, the Applicant was arrested by the Police from being a suspected overstayer and was referred to ImmD on 26 May 2006. On 15 July 2006, the Applicant was released on recognizance under section 36(1) of the Ordinance. 8.On 13 August 2007, a Removal Order was issued against the Applicant under section 19(1)(b) of the Ordnance. 9.On 16 February 2022, a Deportation Order was made against the Applicant under section 20(1) of the Ordinance. Notice of detention under section 32(3) of the Ordinance was served on the Applicant on 23 February 2022. B.2 Criminal Record 10.Before the present period of detention, the Applicant was from August 2007 to November 2019 referred to ImmD on 11 occasions, on 10 occasions following his discharge from prison following his criminal convictions, and on 1 occasion after his arrest by the Police after failing to report recognizance. 11.The occasion of failing to report recognizance was on 17 September 2012. The Applicant was eventually arrested by the Police for the offence of common assault on 1 December 2012, when the Applicant explained that he had no money for travelling to the reporting centre and thus missed the reporting date. 12.The Applicant’s lengthy criminal record relates to past convictions in Hong Kong, all of which occurred during previous releases on recognizance. That record identifies that the Applicant is a repeated offender, with the following convictions and sentences:
B.3 Non-refoulement Claim 13.On 27 May 2006, the Applicant indicated his intention to lodge a torture claim. That claim was rejected by the Director on 6 September 2012. 14.On 17 December 2012, ImmD was informed by the United Nations High Commissioner for Refugees (“UNHCR”) that the Applicant made a request for asylum with the UNHCR. That claim for asylum was closed on 30 January 2014. 15.On 26 February 2014, the Applicant indicated his intention to lodge a non-refoulement claim (“NRC”). That claim was rejected by the Director on 29 December 2017. 16.On 10 May 2018, the Applicant filed, out of time, a Notice of Appeal/Petition against the refusal of his NRC with the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”). On 7 June 2018, the Board refused the Applicant’s application for late filing. 17.On 30 October 2018, the Applicant filed an application for leave to apply for judicial review (“JR”) against the Board’s refusal decision. 18.On 23 June 2020, the Applicant was granted leave to apply for JR by the Court of First Instance, on the basis that the Board had not considered the merits of the Applicant’s case when refusing his late filing of appeal. The Applicant was required to issue an originating summons within 14 days from the date of the Court Order and to serve a copy on the Respondent and the Interested party. He did not do so. 19.As a result, on 24 September 2021, the Department of Justice (“DOJ”) sent a ‘warning letter’ to the Applicant, stating that ImmD would proceed with his removal because there was no pending litigation as a result of the failure to issue the originating summons. 20.On 30 September 2021, the Legal Aid Department sent a letter to ImmD requesting information because the Applicant had applied for legal aid. On 18 January 2022, legal aid was granted to the Applicant to apply for JR. On 16 March 2022, ImmD was notified by the Applicant’s then legal representatives that they had been assigned by the Director of Legal Aid to represent the Applicant in his JR application. 21.Following further correspondence, including directions from the Court, the Court granted an extension of time for the Applicant to file his originating summons on 10 June 2022. The originating summons was filed and served on 15 and 16 June 2022 respectively. 22.On 3 August 2022, the DOJ proposed disposing of the JR application by way of a consent order. Following the filing of a consent summons, the Court made an order by consent on 7 September 2022, quashing the decision of the Board and remitting to the Board the Applicant’s application for late filing of his appeal for fresh determination. 23.By letters dated 21 September 2022, 14 October 2022 and 4 November 2022, ImmD requested the Board to expedite the processing of the Applicant’s application. 24.On 7 November 2022, the Applicant’s application for late filing of his appeal was allowed by the Board. Thereafter, the Board was urged to record high priority to the case and, as far as practicable, to fix a hearing on an early date. 25.On 21 November 2022, the Board issued a notice of hearing directing the substantive hearing of the Applicant’s appeal/petition to be fixed on 29 December 2022. B.4 Reviews of Detention 26.The Applicant’s present detention has been regularly reviewed under the relevant applicable sections of the Ordinance relating to each part of that detention. The most recent review took place this month. 27.On 12 December 2022, the Secretary for Security informed ImmD that the PAS for S had reviewed the Applicant’s detention and considered that there were grounds for continued detention, taking into account the following factors:
28.On 13 December 2022, ImmD decided that release of the Applicant on recognizance was not recommended on the grounds that: (i) his removal was going to be possible within a reasonable time; (ii) he poses, or is likely to pose, a threat or security risk to the community; (iii) he may abscond; (iv) he does not have close connection or fixed abode in Hong Kong; and (v) there are no other circumstances in favour of his release. The following factors were taken into account:
29.The Applicant was given the relevant notice of the review of detention, and reasons for continued detention, on 13 December 2022. B.5 Other Steps to Removal 30.Even prior to the present period of detention, ImmD has sought assistance from the Indian Consulate, requesting issuance of a replacement travel document for the Applicant’s intended repatriation. 31.During the present period of detention, ImmD has continued to seek a replacement travel document for the Applicant’s intended repatriation. Although the Indian Consulate has confirmed the details of the Applicant as being consistent with their records, the Applicant has shown unwillingness to return to his home country and has refused to complete a re-entry application form and take photos as required by the Indian Consulate. C. Applicable Principles 32.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. 33.The summary is as follows:
34.I have applied those principles as applicable to the particular circumstances of this case. D. Applicant’s Submissions 35.In his affirmation/written submissions filed in support of his application, the Applicant stated the grounds of his application as being that:
36.At the hearing, the Applicant handed up a written note of submissions. They suggested that ImmD’s letters to the Board dated 11 and 18 November 2022 seeking expeditious handling was “a desperate attempt to further exercise the power to detain”, and it begs the question why the Director did not write the letters months before the current habeas corpus application, rather than in response to it. However, as I pointed out at the hearing, there is plainly nothing objectionable in the Director notifying the Board that the Applicant is held in detention, and asking the Board therefore to accord priority to dealing with his case. In fact, that approach is not only proper, it is in the Applicant’s favour. Further, the Director had in fact sought to expedite the Applicant’s case from a much earlier time, and did not do so just as a reaction to the current habeas corpus application. 37.By way of further oral submissions, the Applicant expressed being sorry for whatever mistakes he had made whilst intoxicated, and asked for forgiveness. He said he would not repeat his mistakes again and asked for “bail”. D. Whether Detention Has Become Unlawful 38.I accept that proper authority for detention has been present throughout the current period of the Applicant’s detention, variously under sections 32(3A), 29 and 32(3) of the Ordinance. Hence, there was and is prima facie lawful authority to detain the Applicant pending removal under the Removal Order or Deportation Order. The question therefore arises as to whether the overall circumstances of the detention have made it unreasonable and hence unlawful. 39.Ms Zhi submitted that the detention of the Applicant has been reasonable at each stage and throughout its entire period. Ultimately, after careful consideration, I agreed. 40.The starting point is, of course to recognise that the period of detention is certainly quite long, being 679 days (approximately 1 year and 10 months). It is against that period that the various other factors needed to be weighed and balanced. 41.I accept that the Director is intent upon removing the Applicant at the earliest possible moment, and that the Applicant has been detained for that purpose. The Director has been actively liaising with the Indian Consulate regarding a replacement travel document for the Applicant, and the prior verification of his identity – though the Applicant has chosen not to be cooperative in completing the re-entry application form and to provide photos as required. 42.Now that the Board’s fresh consideration of the Applicant’s NRC has been fixed for hearing on 29 December 2022 (just 10 days after the hearing of this application), I agree that it can be said that the Applicant can be removed within a reasonable period of time. The consideration is affected by the history, where the Applicant was granted leave to apply for JR on 23 June 2020, but took no steps to issue the originating summons until apparently triggered by the DOJ’s warning letter in September 2021, and even then the originating summons itself was not issued until June 2022. That delay must be down to the Applicant. Thereafter, the DOJ actively sought to resolve that originating summons by a consent order, and the Director has subsequently urged the Board to expedite dealing with matters involving the Applicant. It can be expected – not least with further encouragement for expedition – that the Board will determine the Applicant’s appeal/petition within say two or three months after the hearing. 43.As to what will happen after the Board’s decision, it is inappropriate to speculate. I note that the Applicant has suggested that there is bound to be some protracted legal proceedings, but it is premature to say so without seeing the Board’s decision and the reasoned basis for it. 44.I also accept that there is some risk of absconding, evident from the previous period of absconding which ended only upon the Applicant’s re-arrest, and his clear unwillingness to be repatriated notwithstanding the illegality of his presence in Hong Kong and the existence of the Removal Order and the Deportation Order. 45.Further, the risk of re-offending is obviously substantial, where the Applicant has committed criminal offences on each and every occasion of his previous releases on recognizance. It seems to me that little weight can be given to the Applicant’s promise that he would not re-offend, even if he is genuinely remorseful for the mistakes he made when (he says) he was intoxicated. The Applicant is a recidivist, in particular as regards the repeated indecency offences and offences involving violence, identifying a real and substantial risk to members of society if he were to be released. 46.Further, the Applicant has no close or local connections to Hong Kong, and the degree of close or local connections has already been taken into account by the Director. 47.Lastly, I do not think the allegations made regarding the conditions of detention in this case significantly change the balancing exercise. Nevertheless, I accept that the longer detention continues the greater the impact may be of the various restrictions and requirements inherent in detention. 48.Ultimately, at present, after weighing and balancing all the various factors against the period of detention and the apparent likely progress of the Applicant’s NRC, I am satisfied on balance that the detention has remained Hardial Singh compliant. 49.Of course, I also accept that the situation might change after the Board’s decision, not least against the already quite lengthy period of detention. Any future assessment and balancing exercise will have to take place to take into account any change of circumstances and the changed length of detention. E. Result 50.For the above reasons, I dismissed the Applicant’s application, with no order as to costs.
The applicant, acting in person Ms Angel Zhi, Senior Government Counsel (Ag.), of the Department of Justice, for the 1st and 2nd respondents |
Cases cited in this judgment
Other judgments that cite this case