Johnson Benjamin v. Director of Immigration and Another

HCAL 897/2023

[2023] HKCFI 1664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 897 OF 2023

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D E C I S I O N

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A. Introduction

1.The Applicant has been a subject of immigration detention since 15 February 2022, under different sections of the Immigration Ordinance Cap 115 (“Ordinance”). To the date of this hearing, the detention has lasted 494 days, or about 1 year and 4 months.

2.On 8 June 2023, the Applicant applied for writ of habeas corpus on grounds set out in his supporting affirmation. On 12 June 2023, I gave leave for the Respondents to file and serve their written response and the necessary directions to bring the matter to today’s hearing.

3.At the hearing, the Respondents were represented by Mr Alvin Hor, Senior Government Counsel (Ag.) The Applicant appeared in person.

4.This is my Decision.

B.  Applicant’s Immigration Status

5.The Applicant is a Liberian national born in 1980.

6.He landed in Hong Kong in February 2012, with his Liberian passport and was permitted to stay as a visitor for 5 days. He did not depart within the limit of stay and was later arrested by the Police in September 2012. Two days after his arrest, he lodged a what is now called a non-refoulement claim (“NRC”).

7.On 25 November 2013, a Removal Order was issued against him. The Removal Order was not executed, because the Government then applied a policy not to remove non-refoulement claimants while their NRCs or subsequent legal proceedings were being processed. The Applicant was granted release on immigration recognizance, which allowed him to live in the community freely. He has been staying in Hong Kong since February 2012.

8.In March 2014, the Applicant married a Ms Chan (“Wife”) who is a permanent Hong Kong resident. In the same month, he applied for a dependent visa, which would allow him to stay in Hong Kong as the dependant of his Wife. A son (“Son”) was born out of the marriage. The Son was born on 16 June 2015 and is now 8 years’ old.

9.Apparently, the Applicant’s dependant visa application did not come to fruition. On the Applicant’s own understanding, his application was “suspended” because he was then arrested and subsequently convicted of rape.

C.  Criminal Record

10.In 2016, the Applicant was tried on indictment for one count of rape, one count of assault occasioning actual bodily harm, and one count of indecent assault in HCCC 456/2015. The rape occurred on 18 June 2015, two days after the Wife gave birth to their Son. The victim (“Victim”) was a friend of the Wife. The prosecution case was that the Applicant lured the Victim to go to the couple’s home, on the pretext taking something to the Wife who was hospitalised. The Applicant then raped her. The Applicant was convicted on all charges by the jury (by majority verdict) after a trial of 12 days.

11.On 28 October 2016, DHCJ Lugar-Mawson sentenced him to a total of 10 years. This can properly be regarded as an enhanced sentence, to reflect its seriousness. In his reasons for sentence, the learned Judge said that:

I can say that, having heard the evidence over the 12 days of trial, it was the most brutal rape, one in which you severely beat the woman concerned and forced her against her will to commit acts of oral sex on you.

12.The Applicant later appealed against both conviction and sentence in CACC351/2016. The appeal was dismissed in respect of both conviction and sentence. In upholding the sentence imposed, the Court of Appeal said at §55:

We do not agree with Mr McGowan’s criticism of the use by the judge of the word “brutal” to describe the rape of Ms X. There is no question that the applicant did severely beat his victim, as well as force her to perform acts of oral sex on him in a most degrading ordeal that must have lasted a significant time. It was a callous, merciless attack on an unsuspecting woman who was lured up to the applicant’s flat on the pretext of helping him take something to his wife (and her friend), who had apparently been taken ill after giving birth. Since these events, there has not been one shred of remorse on his part.

13.The Applicant completed his sentence on 15 February 2022, on which date the Director revoked the immigration recognizance granted to him, marking the beginning of the current detention.

D.  Removal Obstacles

14.As is usual in habeas corpus applications raised by immigration detainees, the obstacles to removal are the Applicant’s NRC and his expired travel document which needs replacement.

D1.  NRC

15.It has taken more than 10 years for the Applicant’s NRC to have reached the stage of being disposed of by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”). I think it fair to say that much of delay was of the Applicant’s own making. I take the following summary from Mr Hor’s written submissions, which broadly maps the Applicant’s own description.

16.In September 2012, the Applicant lodged an NRC. But in August 2015, about 3 years later, his NRC was treated as withdrawn because no completed NRC form had been returned.

17.In September 2015, he requested to reopen his NRC. The Director then reopened his NRC as per his request, but only to have the claim treated as withdrawn again the next month as per his instruction given to the Duty Lawyer Service.

18.In December 2021, that was more than 6 years after he last withdrew his NRC and shortly before his discharge from prison, he requested to reopen his NRC again. The Director acceded to the request and reopened his NRC in January 2022.

19.In May 2022, the Director rejected the NRC.

20.In July 2022, the Applicant appealed to the Board out of time. Despite the delay, on 3 October 2022, the Board accepted the appeal application. The appeal hearing was conducted in December 2022. From December 2022 to June 2023, the Director sent more than 20 letters to the Board, either to seek priority for the Applicant’s case or to enquire after the case progress. The Board replied twice, by letters dated 6 January 2023 and 12 June 2023 that priority would be accorded to the Applicant’s case. Eventually, on 15 June 2023, the Board resolved the appeal by a dismissal.

21.In his submissions, the Applicant has of course referenced the possibility of related Court proceedings arising from the Board’s dismissal of his appeal. He informed me orally this morning that he had instructed lawyers to file an application for leave to apply for judicial review to challenge the Board’s decision (though he had himself also collected the appropriate application form. He says that his lawyers will be able to make the application in good time.

D2.  Replacing travel document

22.The Applicant held a Liberian passport which expired on 2 April 2019.

23.I am told that the Director has been taking active steps to procure the issuance of a replacement passport to the Applicant, but the Applicant has not been cooperative in the process.

24.The Director’s efforts pre-dated the present immigration detention. By letter dated 2 March 2021, the Director informed the Liberian Embassy that he intended to deport the Applicant back to Liberia upon his discharge from prison, and urged for the issuance of a replacement passport to him. A chaser was sent again on 10 December 2021.

25.After the Applicant had been taken into immigration detention in February 2022, the Director continued to work towards the issuance of a replacement passport. On 25 March 2022, the Director interviewed the Applicant for this purpose, but he refused to submit a re-entry application.

26.Further letters or emails were sent by the Director from June to October 2022.

27.On 23 November 2022, in a phone interview conducted by the Director, the Applicant refused to submit a re-entry application or to attend interview with the Embassy.

28.Despite the Applicant’s refusal to cooperate in making the re-entry application, the Director arranged for the Applicant to be interviewed by the Embassy by telephone on 10 February 2023. However, the Applicant refused to attend the interview on the scheduled date.

29.On 14 June 2023, in another interview with the Director, the Applicant again refused to comply with the re-entry formalities or to attend an interview with the Embassy.

30.In his evidence and submissions, the Applicant has sought to explain his lack of cooperation on the basis that he thinks – with the benefit of legal advice – that it was premature to seek a travel document when, at least at that time, the Board had not even yet rendered a decision on his appeal. Even now, because he intends to file the application for leave to apply for judicial review, he thinks it remains premature to seek a travel document.

31.When it is appropriate, the Applicant suggested, he would be able to obtain a travel document for himself even quicker than the 2 weeks or so that the Embassy has informed the Director as would be necessary for the issue of a travel document once all formalities have been completed.

32.I note that the Applicant also consistently expressed unwillingness to return to Liberia, in the various interviews conducted by the Director with him.

E.  Review of Detention

33.The Director and/or Secretary has reviewed the Applicant’s detention on numerous occasions. Continued detention was recommended every time.

34.The latest review was conducted in mid-June 2023, by immigration officers of various grades and eventually endorsed by PIO (RAL) on 13 June 2023. The progress of the Applicant’s NRC was noted and it was put on record that the Board has confirmed that priority would be accorded to the case. It was estimated that the Board would determine the Applicant’s appeal in the reasonably foreseeable future.

35.The officers also relied on the Applicant’s criminal record in suggesting that he poses a threat to the Hong Kong community and might reoffend if released on recognizance.

36.In a section headed “Family/Local Connection”, it was stated that the Applicant has a wife who is a permanent Hong Kong resident. But the Director was unable to reach the Wife. The Wife’s father informed the Director that the Wife was remanded in Tai Lam Centre for Women, and the Son was taken care of by the Wife’s father. It was noted that in a telephone conversation with the father, he said that was he willing to stand as the subject’s guarantor and provided his ID card number and local address.

F.  Applicable Principles

37.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 any individual case.

38.Not least because, in his written submissions, the Applicant has referred to many of the principles there summarised, it may be helpful to set the summary out in full in this decision, 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.

39.I apply those principles to the particular circumstances of this individual case.

G.  The Applicant’s Submissions

40.Exhibited to his supporting affirmation are some 200 pages of materials, 35-odd pages of which are his handwritten submissions, and the rest copies of various documents referenced by him.

41.This is my summary of the Applicant’s written submissions.

42.First, the Applicant sought to explain why he might be seen as not pursuing his NRC with any real sense of urgency. He said:

(1)  When his claim was treated as withdrawn on 27 August 2015 for failing to return a completed NRC form, he was remanded in custody and no longer had access to the form.

(2)  For the withdrawal of his NRC on 5 October 2015, as instructed by him via the Duty Lawyer Service, he said that was because he was emotionally and psychologically unfit and unable to cope with the pressure resulting from the criminal charges he was facing, as well as from the pressure that he had just become a father two days before his arrest.

43.Second, in respect of his convictions for rape, assault occasioning actual bodily harm and indecent assault, he said:

(1)  He did not dispute that he was convicted of the offences, which are serious in nature.

(2)  But he has served his prison term. He spent 6 years and 8 months in prison. His crime has already been dealt with by the criminal courts. He should not be imprisoned again for the same crimes. This application is not a re-trial of his past convictions.

(3)  He has reflected on the circumstances leading to the crimes. He has modified his behaviour as demonstrated by his continued relationship with Wife and Son and his in-laws. During his time in prison he did not have any record of violence or and was not engaged in any fight. As part of his rehabilitation, he worked in different workshops in the prison, e.g. on printing, envelope making workshop, mask making, furniture making. He also once worked as a Category A cleaner.

(4)  He did not have any connection with terrorist activities. Nor is he subject to any Interpol warrants.

(5)  He has been detained for 16 months by the Director. The longer the detention period, the greater the risk necessary to justify the detention. Even if the Board refuses his claim, he will seek judicial review and his NRC will continue to drag on. The risk he poses will become of less weight in the balance as his case drags on.

44.Third, he relies on his family circumstances.

(1)  He set out how he met his Wife, how they got married and eventually gave birth to the Son on 16 June 2015.

(2)  Because he was arrested two days later and was then sentenced to prison, he has had no opportunities to hug his son.

(3)  He has maintained a cordial relationship with his family despite his incarceration. After he was convicted, his Wife visited him four times every month, bringing along with her their Son, and sometimes his father-in-law. His Wife complained about suffering from anxiety and depression in the letters written to him. The Wife later began to show some signs of schizophrenic.

(4)  However, the visits stopped abruptly around January 2021. He later received a letter from her stating that she was unable to visit due to the lockdown in the city caused by Covid-19. But since that, he has not received any letters from or been visited by the wife. He tried to reach his wife via different people or entities e.g. his former lawyer, the Social Welfare Department, a newly engaged law firm, and the family mediation centre but to no avail.

(5)  He became traumatised resulting from worrying too much about his Wife and Son. Whilst he was detained in CIC, he requested to get help from a psychologist but his request was declined.

(6)  He later learned from his lawyer that his Wife was arrested for child neglect and another offence.

(7)  He and his wife have twice communicated via institutional video visit, once in January 2023 and once in May 2023. He had difficulty arranging to have his father-in-law and Son to visit him because an interpreter will be needed (because the Applicant does not speak Cantonese and the Son does not speak either English or an African language) and a detainee can only have two visitors at the time. He said if he were at liberty, he could easily communicate with his family members, especially his Son.

(8)  His Son needs him. It is difficult for the Son to be separated from both parents. His Son may develop various mental problems due to being separated from both of his parents. His father in law told him that his Son worried too much about his parents and was always asking when his parents would be home.

(9)  As stated, the Son cannot speak English or any African languages. His son is at the age where he can easily teach him African languages or English.

(10)  His family connection is a strong factor pointing towards release on recognizance. His relationship with his family shows that he has modified his behaviour since he committed the crimes. This connection also militates against any risk of absconding. Yet, the Director has refused to attach any weight to this factor. He said that as shown in the “(Notice of) Review of Detention” issued to him from 15 February 2022 to 17 May 2023, the Director has deliberately refused to acknowledge that he has family connection in Hong Kong. It is flatly incorrect to tick the box on the Notice of Detention form stating “You do not have fixed abode or close connection (e.g. family or friends) in Hong Kong to make it likely that you will be easily located if released.”

45.Relevantly, it might be noted that, from the information provided to me by the Director, in May 2023, the Wife wrote to the Director requesting for the release of the Applicant on recognizance so that he could take care of the Son.

46.The Applicant also explained the following negative effects on detention (apart from those relating to being separated from his family) on him:

(1)  He quit smoking, since 2016. But whilst in immigration detention, he had to endure second-hand smoking. He thought about making a complaint but there was no way of making an anonymous complaint in the detention centre. He did not want to make himself a target by complaining.

(2)  The diet in the detention centre – mainly rice and bread – is not healthy for him.

(3)  He could not engage in activities he derives satisfaction from, such as playing soccer.

(4)  The staff in CIC used obscene language at him for no justifiable reason.

47.Whilst understandably all the submissions above were intended to be assessed within the Hardial Singh framework, the Applicant also made submissions expressly referring to the Hardial Singh principles. He said:

(1)  The detention has gone on for a period which in all the circumstances has become unreasonable. HS2 is not satisfied.

(2)  Deportation cannot be effected within a reasonable time since there are obstacles to removal. His case has been heard by the Board for 6 months and yet no decision has been made (which was correct at the time of the application and submissions). His case will apparently not be determined in the coming weeks or months. It is the policy of the Director not to remove a detainee whose appeal to the Board has not yet been determined. The Director cannot identify the time or a timeline when they can realistically remove him from Hong Kong. HS3 is not satisfied.

(3)  The Director or Secretary has failed to give any reason as to why they are not prepared to attach any weight to the effect his continued detention is having on his family, especially his Wife and Son. These are factors which would inform the analysis of HS2 and HS3.

(4)  The evidence suggests that the detention is not used for the sole purpose of deportation. The Director has weaponized the power of detention to subject the Applicant into abandoning his NRC and to be deported to a risk state. If the continued detention is a result of his criminal record, it brings into doubt the intention of the Respondents and the possibility of double jeopardy. HS1 is not satisfied.

(5)  There is an absence of promptitude on the part of the Director. The best the Director has done is to send letters to the Board asking it to accord priority to his claim. The strategy has so far (at that time) yielded no result as there are numerous other cases which require priority. The other effort was to arrange a phone interview for him with the Liberian Embassy. He declined the phone interview because there is no justifiable reason for such an interview at this stage. His case has not yet reached the stage of being rejected by the judicial review Court. HS4 is not satisfied.

48.At the oral hearing, the Applicant made some oral submissions based upon a further set of what are called ‘amended submissions’, comprising 7 handwritten pages with over 100 pages of attachments. In my summary of those submissions, the Applicant stated:

(1)  In the past eight years, he has had time to reflect and realise how much hurt he has caused his Wife, Son, in-laws and his Wife’s friend (not forgetting his adopted mother).

(2)  He wishes to apologise sincerely to all he has hurt, especially his Son, who was barely 2 days old when the incident leading to his imprisonment occurred.

(3)  Because of his Son, the Applicant is now determined to be responsible and to amend his previous behaviour where he was going wrong.

(4)  He wishes to return to be the man he was before, as is shown in photographs from 2014 and 2015 handed up to the Court.

(5)  To further express his remorse, he has written to the Police to provide credible information on illicit trading of dangerous drugs (and copy of the letter was attached). He is also willing to continue to provide credible information in future if such information is gathered.

(6)  His solicitor has advised that there are errors in the Board’s decision warranting an application for judicial review. That application is being drafted by Counsel and will be filed within the specified period permitted under the rules.

(7)  He should not be criticised for not yet having filed the application, because the Board’s decision was only issued on 15 June 2023.

(8)  The intended application for judicial review should not be viewed as a self-inflicted obstacle to removal, but instead as the opportunity for him to exercise his legal rights as provided by law.

(9)  There has been no unreasonable delay, nor any attempt to slow down at all, the NRC claim since it was resumed.

(10)  This has been recognised in that the Notice of Reviews of Detention do not contain a kick in the box relating to “You, without reasonable excuse, had failed to comply with this prescribed procedures and time limits in relation to determination of the claim.”

(11)  His failure to comply with the re-entry formalities has been only because of the view that it is premature, when there has been and there will remain a legal impediment to removal (see above).

(12)  His case has similarities to previous cases, in particular my decision in HCAL 838/2022, where incidentally the information provided by the applicant in that case to the police which led to successful arrests was information in which the Applicant in this case have been instrumental.

(13)  The personal letters submitted to the Court from the Wife demonstrate that there is love in existence within the family, and that there is a real marriage notwithstanding obstacles faced.

(14)  The Applicant’s Wife needs his support at this time, as does the Son. But continued detention creates a serious barrier to his providing that support.

(15)  There is also the arduous barrier of required interpretation, causing problems if the Son and father-in-law are required to visit him in detention.

(16)  His father-in-law is willing to stand as guarantor, and if released on recognizance the Applicant would reside with the father-in-law.

(17)  He should be caring for his Son, and visiting his wife where she is currently held.

(18)  Therefore, has no reason to abscond or go underground, and he will not re-offend.

49.I will bear all these points in mind in my analysis below as appropriate.

H.  Whether Detention has become unlawful

50.Unlike most of the habeas corpus applicants coming before this Court recently, the Applicant was taken into immigration custody when his NRC had not been disposed of by the Director. A substantial detention time was taken waiting for the decision of the Board. A claimant may not be removed from Hong Kong to a torture risk State unless and until the torture claim (i.e. the component of a NRC based on torture risk) has been withdrawn or has been finally determined as not substantiated: see section 37Z of the Ordinance. A torture claim is finally determined when it is dismissed by the Board, or dismissed by the Director and no appeal to the board is lodged within the stipulated period: see section 37V. It can also be noted that only a person who is subject or liable to removal may lodge a torture claim: see section 37W.

51.Thus, when there is a subsisting torture claim, a claimant cannot be detained “pending his removal” because he, by virtue of section 37Z, may not be removed from Hong Kong. In the circumstances, even if there is an extant Removal Order, the authority cannot access the detention power provided by section 32(3A).

52.But the Ordinance provides an alternative basis for detention for those claimants with subsisting torture claims which are not yet finally determined. Section 37ZK provides that a claimant may be detained pending final determination of his torture claim.

53.Throughout the period of detention, the statutory bases for detention switched back and forth between section 37ZK and section 32(3A). This is because the Applicant’s torture claim (and NRC) did become finally determined at one point in time, but was later “activated” again.

(1)  From 15 February 2022 to 27 May 2022, the Applicant was detained under section 37ZK pending the final determination of his torture claim. When the Director rejected his NRC on 13 May 2022 and no appeal was lodged to the board within 14 days, his NRC became finally determined on 27 May 2022 pursuant to section 37V(2)(a).

(2)  From 27 May 2022 to 5 October 2022, the Applicant was detained under section 32(3A) pending his removal. The Removal Order remains extant.

(3)  From 5 October 2022 to 15 June 2023, the legal basis for detention switched back to section 37ZK. This is because the Applicant filed an appeal to the Board out of time in July 2022, which was accepted by the Board on 3 October 2022, making his NRC “pending determination” again. But the Director was only notified of the Board’s acceptance on 5 October 2022, and thus the two days’ delay in switching the statutory basis for detention back to section 37ZK.

(4)  From 15 June 2023 onwards, the statutory basis for detention switched back to section 32(3A) again. This is because the Applicant’s appeal to the Board became finally determined – by a dismissal – on 15 June 2023.

54.In short, there was a 3 months’ period when he was pending the Director’s decision on his NRC, then a 5 months’ period when he was pending removal, and finally an 8 months’ period when he was pending the Board’s decision.

55.There was and remains clear prima facie lawful authority for the detention of the Applicant throughout the whole period. Therefore, the question arises as to whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

56.The Hardial Singh principles which were developed in the context of detention pending removal or deportation are equally applicable for detention pending the final determination of torture claims, with suitable modification.

57.I can address the Hardial Singh principles broadly below. Whilst at some points I may address each of the three sub-periods separately, I do not lose sight of that the three sub-periods ran continuously to form a period of continued detention running from 15 February 2022.

58.The starting point is that the Applicant has been detained up to today for a period of 494 days or about 1 year and 4 months. This is a very substantial period of time, and it is against that period that the other factors are to be weighed and balanced.

59.I also think it correct to take into account that that substantial period of 494 days immediately followed the even lengthier period of his imprisonment following criminal conviction. That is not to treat the immigration detention period as being longer than in fact it has been, or otherwise to suggest that the imprisonment was somehow inappropriate or unjustified. But that is merely to recognise that the effect of the immigration detention on the Applicant might be greater in certain aspects because it has immediately followed another lengthy period of imprisonment.

60.Throughout the entire current detention period, I have no doubt that the detention power has been used either to facilitate removal or pending the final determination of the Applicant’s NRC. There is no basis for the Applicant’s suggestion that the Director has been detaining him for the ulterior purpose of making him abandon his NRC. Whilst the Director has taken into consideration his criminal record in refusing to grant recognizance, it does not mean that he was detained for his past convictions. HS1 is satisfied.

61.I also accept that the Director has always been acting with reasonable diligence and expedition.

62.For the first 3 months ending on 27 May 2022, two months of it was used by the Applicant in completing his NRC form. As recorded in the Director’s decision dated 13 May 2022, the Applicant only submitted the completed claim form on 14 April 2022. The Director then conducted a screening interview on 4 May 2022, and delivered the decision in less than 10 days later, on 13 May 2022. The diligence of the Director cannot be criticised.

63.Moving to the period running from 27 May to 5 October 2022, when the Applicant was detained pending his removal under section 32(3A). The major obstacle to removal at that time was the Applicant’s expired passport which needed replacement. As shown in the matters set out above, the Applicant refused to go through the re-entry formalities, despite the Director’s active liaison with the Liberian Embassy.

64.The Director’s efforts regarding the passport continued into the next period by, say, arranging a phone interview with the Embassy on 10 February 2023, despite the Applicant’s reluctance. The Applicant has suggested that he was entitled to refuse attending the phone interview because his NRC has not yet reached the stage that would make him “removable” from Hong Kong even under the Director’s new removal policy. But by taking that step, the Applicant must be taken to have accepted that extra time, whilst he might be in detention, would be needed to procure a replacement passport if and when he should become “removable”. I am not sure why any lawyer would advise such a course of conduct.

65.For the last 8 months running from early October 2022 when the Board accepted the Applicant’s late application to appeal, the Director had done what he could by informing the Board that the Applicant was in detention and repeatedly asked for priority. The Applicant criticized the Board for only sending letters. But with due respect, there was nothing much that the Director could do other than sending letters because the ball was then not in his court.

66.Overall, I am satisfied that the Director has been acting with reasonable diligence and expedition throughout the entire period. HS4 is satisfied.

67.I recognize that the overall duration – about 1 year and 4 months – is a very lengthy period. It is unfortunate that the detention might have taken much longer time than one would have expected when the detention began. The time taken for the Board to resolve the appeal or for a replacement passport to be issued might be longer than what the Director had expected. But that does not mean that it was unreasonable, at each point in time, for the Director to expect that the Board would be able to dispose of the appeal or that a replacement passport could be issued within a reasonable time.

68.In respect of the time taken for the Board to decide the appeal, the Applicant doubted the effect of sending letters to repeatedly urge for priority for his case. In his written submissions, he suggested that a long process time should be expected due to the volume of cases the Board had to handle. Section 37ZK specifically provides that, in assessing reasonableness of the length of detention, the Director is entitled to have regard to the number of other cases pending final determination, and the manpower and financial resources allocated for carrying out such work. I think the fact suggested by the Applicant – that the Board had to deal with a lot of similar cases which would lengthen the processing time of his own case – would seem to explain the Board’s taking 8 months altogether to resolve his appeal.

69.I acknowledge that, at the time of making this application, the Applicant had not received the decision of the Board. But that decision has now been received, albeit only a week or so ago.

70.Further, I agree with Mr Hor that the unfortunately lengthy time taken in resolving the Applicant’s NRC was partly attributable to the Applicant’s own actions. This is a factor of some real weight in assessing the reasonableness of the period of detention to date. The Applicant did not pursue his torture claim or NRC with any sense of urgency after he lodged it in September 2012, leading to two withdrawals in 2015. He did not properly re-open his claim until December 2021, that was almost 10 years after he landed in Hong Kong in February 2012. Had he chosen to pursue his case with some diligence, his NRC might have been resolved long before February 2022, when the present detention commenced.

71.The Applicant tried to explain the two withdrawals in 2015, as set out above. I do not need to reject the explanations to identify merely that the equivocation by the Applicant has significantly contributed to the delay in, or overall time taken for, the determination of his NRC.

72.Further, as regards those explanations, the Applicant said he failed to return a completed NRC form leading to his claim being deemed as withdrawn on 27 August 2015 because he was then already arrested and then sentenced to prison. But I note that the Applicant had been released on immigration recognizance until 18 June 2015, when he was arrested for rape. Further, he was able to request for the re-opening of his claim whilst in prison, showing that being in custody would not prevent him from handling his case.

73.He said he later gave instructions to Duty Lawyer Service to withdraw his claim in October 2015 due to pressure and psychological problems arising from his having to face the criminal charges. I note that it was his own request, given in September 2015 when he was already arrested, leading to the re-opening of his claim in the first place. The explanation given does not clearly explain his actions.

74.Further, he did not explain why he only requested to re-open his claim in December 2021, more than 6 years after he had requested to withdraw it.

75.The question now arises as to how to factor in the Applicant’s intended application for leave to apply for judicial review to challenge the Board’s decision. This is not a case of having to second guess whether such an application might be made, where the Applicant has clearly identified that one is being drafted by his lawyers, and that it will be filed within the permitted time.

76.Assuming such an application is filed within the next couple of weeks, it will likely still take some months to be determined, even if the Court is asked to accord the application priority because the Applicant is in detention. Mr Hor has suggested, from previous experience, that an expedited dealing might take around four months for the application to be determined. In previous decisions, I have not thought it appropriate to second guess the result of outstanding applications (or to take any particular view as to what might be the merit of any such proceedings). I have done so on the basis that such matters can be considered, if appropriate, in due course. But here, such an application is or is about to be afoot, and the relevant consideration seems to me to be to identify when that application might be determined. In other words, the question to be answered is whether it can now be said that there is a realistic timeframe within which the application might be determined and, if it goes against the Applicant, when he might be removed.

77.As stated, and leaving assuming that the application for leave to apply for judicial review is issued well in advance of the long-stop deadline of three months from the date of the decision the subject of challenge, a realistic period necessary for the determination of that claim must be around 5 to 6 months from now. If the Applicant were detained for a further 6 months, that would bring the period of his administration detention to approximately 1 year and 10 months.

78.I do find some weight in Mr Hor’s submissions that the Applicant may pose a real and substantial threat to the Hong Kong community if he were to be released on recognizance. I have set out the crimes he committed, described by the trial Judge as the “most brutal rape”, which comment was then endorsed by the Court of Appeal. I acknowledge the Applicant’s statement as to his intended future behaviour, and the fact that he is showing his remorse by providing information on illicit trading of drugs. But that does not seem to me to remove entirely all risk. First, Mr Hor is correct in pointing out that the information is provided only in the context of this application, and at the last minute, and has not been verified. Secondly, Mr Hor is correct that the provision of such information might only go to remorse, but is not terribly weighty in the assessment of lawfulness of detention. Further, if the risk of re-offending were to eventuate, the potential impact of it could be extremely serious.

79.As to risk of absconding, the Applicant has correctly pointed out that the Notices of Detention given to him recognize that he has not previously absconded, escaped from custody or have any record of jumping bail, and has not failed to obtain an appointment or scheduled interview without reasonable excuse. In other words, there is no history of absconding as might of itself give rise to an inference of a significant future risk of absconding. But, nevertheless, I agree that there is some risk of absconding, which if it eventuates, will render removal impossible.

80.The Applicant has repeatedly expressed unwillingness to return to Liberia, and he has refused to cooperate in obtaining a replacement passport to facilitate his removal. On the other hand, I accept some weight should also be given to the presence of the Son in Hong Kong, for whom the Applicant expresses the desire to care (particularly because the Wife may currently not be able to do so), which is also a pointer against risk of absconding. In his submissions this morning, the Applicant suggested that he wished to spend the time in advance of his removal from Hong Kong in (amongst other things) discussing and making arrangements for what might happen with the family after he is removed. As against the lengthy period of detention to date, and on those facts, it seems to me that the risk of absconding is now considerably reducing in weight in the necessary balancing exercise.

81.As to the Applicant’s family circumstances, as shown in the Director’s internal minutes pertaining to the review of his detention, the Director was aware them and took them into account, but did not place great weight on them as a factor favouring release. The Applicant violently raped the friend of his Wife two days after his Wife just gave birth to their Son. This does not help in showing him as a man who cares about his Wife and Son greatly – at least at that time. As stated, I understand that the Wife is now in Tai Lam Centre for Women, apparently for child neglect, and the Son is placed in the care of the father-in-law. But, it is fair to recognise that the relationship with the Wife continued for a significant period of the Applicant’s imprisonment, with regular letters and visits, sometimes with the Son, until the Wife appeared to have developed her own possible psychiatric problems. From what is said through the father-in-law, on the Applicant’s evidence, some clear relationship has been obtained with the Son as well.

82.I think it should be noted that this is not a case where a father has been taken into custody or detention from a situation where he had some usual day-to-day care of a child. In this case, the Applicant has never been a real day-to-day carer of the Son, let alone the primary carer. On the evidence, there is no reason to doubt that the Son is receiving appropriate care from his maternal grandparents, even in the absence of both parents.

83.Further, as he himself recognises, the Applicant is liable to be removed from Hong Kong in any event, and so (depending on other arrangements) is liable to be separated from the Wife and the Son for that reason. I think that may be a factor pointing to release on recognizance pending removal, so that the Applicant is able to establish a closer relationship with his Son before the Applicant is removed – something that may be as important for the Son as it may be for the Applicant. This is a matter to be given proper weight.

84.There is also some force in the Applicant’s submission that ‘the sins of the father should not be visited on the son’, though this point must not be overplayed.

85.I have set out the various factors that seem to me to come into the balance in what seems to me to be a difficult case to resolve. A number of features point in favour of continued detention, whilst others seem to me to point in favour of release on recognizance.

86.Overall, weighing the period of detention – 494 days, or 1 year and 4 months – against all the other factors, in particular the likely foreseeable further period before the intended application for leave to apply for judicial review can realistically be determined, and the family circumstances, I am of the view that the detention of the Applicant has now reached a length and likely future continuation for a period which is not reasonable and lawful.

I.  Result

87.For these reasons, I allow the Applicant’s application for writ of habeas corpus.

88.I direct that the Applicant be released on recognizance, on terms satisfactory to the Director.

89.I make no order as to costs.

The applicant, acting in person

Mr Alvin Hor, Senior Government Counsel (Ag.), of the Department of Justice, for the respondents