Hossain Aejaz v. Director of Immigration

HCAL 993/2023

[2023] HKCFI 1864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 993 OF 2023

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BETWEEN

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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 against him on 5 April 2017.  Since 26 January 2022, he has been held in immigration detention as authorised by section 32(3A)  of the immigration Ordinance Cap 115 (“Ordinance”)  pending his removal from Hong Kong.  To the date of this hearing, the detention has lasted for 532 days, or about 17½ months.

2.On 21 June 2023, he applied for writ of habeas corpus on grounds set out in his supporting affirmation.  On 26 June 2023, I gave leave for the respondent Director to file and serve his response and the necessary directions to bring the matter to a hearing.  The hearing was originally fixed for yesterday, 17 July 2023, but was automatically adjourned until today as a result of a typhoon.

3.At the hearing, the Director was represented by Mr Eric Ko, Senior Government Counsel of the Department of Justice (“DOJ”). The Applicant appeared in person with the benefit of a Hindi/English interpreter.

4.This is my Decision.

B.  Background Facts

5.The Applicant is an Indian national born in 1965.

6.He last entered Hong Kong in January 2017 with permission to stay as a visitor for two weeks.  But he did not depart within time and has been overstaying in Hong Kong ever since.  As said, a Removal Order was made against him in April 2017.

7.In the same month as the issuance of the Removal Order, he lodged a non-refoulement claim (“NRC”).  This explains why his unlawful stay in Hong Kong was tolerated by the Director for several years.

8.During his stay in Hong Kong, he was convicted of criminal offences on three occasions.  The first conviction arose from his overstaying in Hong Kong, in breach of the conditions of stay imposed on him. In March 2017, he was sentenced to 4 days’ imprisonment suspended for 12 months.

9.The Applicant is a Muslim and went to prayer in the Kowloon Mosque in Tsim Sha Tsui frequently.  The other convictions are connected to his religious practices.  In October 2021, he was convicted of common assault against a religious leader in the Mosque and for not wearing a mask in a specified public place.  He was fined HK$2,000 and HK$3,000 for the two offences respectively.  Later in the same year, he was further convicted of two counts of criminal intimidation also against a religious leader of the Mosque, for which he was sentenced to a total of 12 weeks’ imprisonment.

10.He appealed against the conviction of common assault, which was dismissed in May 2022.  He appealed against both conviction and sentence of the criminal intimidation charges.  That appeal was dismissed in December 2022.

11.He completed his prison term on 26 January 2022, on which date the present immigration detention commenced.

C.  NRC

12.As said, the Applicant lodged his NRC in April 2017. The NRC was rejected by the Director in February 2018.  He appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”)  which rejected the appeal in June 2020.  In the same month, the Applicant sought leave from the Court of First Instance (“CFI”)  to challenge the Board’s decision by way of judicial review.

13.By the time he was taken into immigration detention in January 2022, his judicial review application remained unresolved.  In June 2022, the DOJ on behalf of the Director sent a letter to the Court to seek priority for the Applicant’s case.

14.By a decision dated 26 August 2022, the CFI dismissed the Applicant’s leave application.

15.Whilst the Applicant did institute subsequent proceedings to overturn the CFI’s refusal, that was only in October 2022 and the application for an extension of time to take the matter further was dismissed on 12 January 2023.  In any event, even any continued proceedings were no longer seen by the Director as a legal impediment to removing the Applicant from Hong Kong since 7 December 2022.  The government’s removal policy has been updated to the effect that once a claimant’s NRC has reached the stage of being disposed of by the CFI, further proceedings will no longer be seen as a removal impediment.

16.As such, as of 7 December 2022, the NRC or related proceedings have ceased to be an obstacle to the Applicant’s removal.

D.  Replacement Travel Document

17.The Applicant’s Indian passport had already expired long before he was taken into immigration custody in January 2022. The Director started to liaise with the Consulate General of the Republic of India (“Indian Consulate”)  for the purpose of obtaining a replacement travel document since the end of January 2022.  The process was less than smooth, in large part because the Applicant refused to cooperate in going through the application.

18.On 16 May 2022, the Director sent a chaser to the Indian Consulate regarding the Applicant’s replacement travel document.  A second chaser was sent on 23 August 2022.

19.As part of the application formalities, an interview with the Applicant was originally scheduled on 16 September 2022.  But the Applicant refused to attend the interview on that date, resulting in the interview being called off.

20.On 28 September 2022, the Applicant was eventually interviewed.  Whilst he still indicated his unwillingness to return to India, he agreed to fill in the re-entry application form.

21.Another interview was scheduled with the Indian Consulate on 21 October 2022, but the Applicant again refused to attend interview.

22.On 12 December 2022, the Director interviewed the Applicant, during which he said he might consider attending interview with the Indian Consulate although he maintained his unwillingness to return to India.  But on the next day, the Applicant refused to cooperate with the removal arrangement again over a phone interview.

23.On 15 December 2022, the Director wrote to the Indian Consulate seeking alternative means to issue a replacement travel document in view of the Applicant’s reluctance to attend an interview with the Consulate.

24.On 31 March 2023, the Applicant refused to fill in another form as part of the application process.

25.On 18 April 2023, the Director again chased after the Indian Consulate in respect of issuing a replacement travel document with alternative means.

26.Eventually, on 20 April 2023, the Indian Consulate issued an Emergency Certificate to facilitate the Applicant’s return.  But the certificate was mistakenly stated to expire also on 20 April 2023.  The expiry date was later amended to 19 October 2023 and the Director received the amended version on 8 May 2023.

27.On 5 July 2023, a flight ticket was secured for the Applicant’s return to India fixed for 19 July 2023.

E.  The Detention Condition in TGCI

28.The Applicant exhibited to his supporting affirmation 149 pages of documents, amongst which 31 pages are two sets of handwritten notes.  The first set explains his prayer practice in the Kowloon Mosque, how he became embroiled in disputes with people associated with the Mosque, and how he was eventually convicted.

29.The second set of handwritten notes concerns his detention conditions.  He was initially held in the Castle Peak Immigration Centre (“CIC”)  and was later transferred to the Tai Tam Gap Correctional Institution (“TGCI”)  on 5 July 2022.

30.As said, the Applicant is a Muslim.  He says he practised fasting every day (rather than just during the month of Ramadan). Therefore, he could only have his three meals all after sunset.  Before 26 July 2022, the staff in CIC or TGCI were able to accommodate his religious practice and he was allowed to have his meals (or at least the dinner)  after sunset.

31.However, he says that after he went to the High Court on 26 July 2022 to attend the hearing for his JR leave application (which was eventually dismissed), the TCGI management adopted another practice and insisted on serving him meals according to the established schedule.  Breakfast, lunch and dinner were served on the regular hours and would be taken away if the Applicant did not finish them in about 20 to 45 minutes. Dinner was served at 5pm and would be taken away shortly afterwards, even if the Applicant was still in prayer and was unable to have it.  As such, the Applicant was unable to consume any of the food served on him during the day.  The Applicant said the staff manning the TGCI tried to kill him by depriving him of food.

32.The Applicant provided a journal in which he recorded his daily food consumption situation from 26 of July 2022 to 21 September 2022.  During the 58-day period, he had consumed food on 26 days, or less than half of the days.  Days with food consumption mostly occurred when he was taken to the Queen Mary Hospital where food was served to him after sunset.  There were also a few days where he was allowed to eat chocolates or biscuits brought to him by a visitor.  On a few occasions, TCGI provided food to him after sunset presumably because he was transferred from hospital back to the institute and had already missed the regular dinner time upon arrival.  On the other occasions, he was transferred to the Siu Lam Psychiatric Centre where food was served on him after sunset.

33.The Applicant has also suggested that the TCGI management tried to declare him a “crazy person” by sending him to Siu Lam Psychiatric Centre many times or for psychiatric diagnosis without basis.  In a letter issued by a doctor from the Queen Mary Hospital to the CSD dated 30 July 2022, it is said:

This 56yo prisoner has refused oral intake during daylight hours due to religious reasons - he will only eat and drink after sunset.  This is not a psychiatric problem, but a religious and human right issue.

He is not suicidal and has no psychiatric symptoms.

Please try to accommodate his religious eating patterns, as he is hungry and would like to eat.

34.In another letter also issued by a doctor of the Queen Mary Hospital to CSD dated 9 August 2022, it says:

known muslim

non-oral feeding on and off since 26/7/22

feeling dizziness since then

but actually already in correctional service since 5/7/2022

he was allowed to have meals at 7:15pm then

but suddenly withdrew request since 26/7/2022

regular meals in correctional service at 5:00pm only

but due to religious reasons he strongly refuses to eat at 5:00pm

I strongly request for his request to be heard

please would you kindly provide his meals at 7:15pm and upon his request

35.In another letter dated 9 September 2022 also issued by Queen Mary Hospital:

The above named patient attended AED for chronic starvation issue.  Due to his religious belief, he would have his meal before sunrise and after sunset.  Multiple admissions for this issue happened before. Please see if any arrangement to facilitate his meal taking.

36.There are three more similar letters exhibited to the Applicant’s supporting affirmation.

37.Whilst the chronology was not clearly set out by the Applicant, it appears that the doctors’ recommendation was eventually heard and the TCGI management adjusted the meal schedule to accommodate the Applicant’s religious practice after 21 September 2022 – at least some period of time.

38.But the Applicant said that from 12 May 2023 onwards, he was again barred from being served with any food after sunset.

39.In Mr Ko’s written submissions, he did not dispute the meal arrangements which the Applicant said had been imposed on him.  But, in both his written and oral submissions, Mr Ko referred to a letter dated 29 August 2022 issued by the CSD in reply to the Applicant’s request concerning meal serving time.  The following points were made in the letter:

(1)  The Applicant had explained that he was a devoted Muslim and would only take meals after sunset every day.  He requested for meals to be served after 7pm every day to facilitate his fasting.

(2)  Being highly concerned with the Applicant’s situation, and in order to give due consideration to the Applicant’s request, TCGI had sought religious guidance from the Chief Iman of the Incorporated Trustees of the Islamic Community Fund of Hong Kong.  The Chief Iman opined that according to Islamic teaching, only one month of a year, i.e. the Ramadan, is for compulsory fasting and the prophet of Islam did not allow fasting without break.

(3)  The TCGI had arranged representatives of the Indian Consulate and the Islamic Community Fund above mentioned to visit him and they had encouraged the Applicant to follow the meal time of the TGCI. They said it was not necessary for a Muslim to fast every day.

(4)  TGCI respects the rights of persons in custody to practise their religions.

(5)  Detention conditions in TGCI are governed by the Prison Rules, Cap 234A.  Rule 45 provides that Muslim detainees are allowed to observe the practice of Ramadan and to fast until sunset.

(6)  But other than the month of Ramadan, Muslim detainees are required to follow the scheduled meal times in TGCI.

F.  Review of Detention

40.Through the 18-odd months of immigration custody, the Applicant’s detention was reviewed on 7 occasions, on 29 March 2022, 2 June 2022, 25 July 2022, 29 September 2022, 27 January 2023, 3 May 2023, and 4 July 2023 respectively.  Continued detention was recommended on each occasion.

41.On the latest review, the following broad grounds were relied upon in support of continued detention:

(1)  The Applicant’s removal is imminent. There is no removal impediment and a valid travel document has been procured.

(2)  The Applicant poses or is likely to pose a threat or security risk to the community.

(3)  The Applicant has convictions associated with crimes of a violent nature.

(4)  He had failed to comply with terms/conditions of recognizance.

(5)  He was re-arrested during recognizance.

(6)  He has directly or indirectly prevented or delayed his removal by his failure to attend interview(s)  and refusal to complete re-entry form/consent forms, etc.

42.In the previous reviews of detention, the Director consistently took the view that the Applicant would be removed within a reasonable time.  The progress of his judicial review leave application and the liaison with the Indian Consulate for replacement travel documents were recorded.  I note that the criminal appeals arising from the convictions of common assault and criminal intimidation were also monitored, apparently as a factor relevant to estimating the time needed before the Applicant could be removed.  In any event, those appeals were dismissed in May 2022 and December 2022 respectively (irrespective of whether they were regarded formally as being obstacles to removal).

43.Relevant to the assessment on security risk, and as a matter of usual practice, the Director sought the Police’s comments on whether there would be security risk to the community if the Applicant were to be released on recognizance.  Perhaps uncommon in the context of habeas corpus applications coming before the Court these days, the Police did take the view that the Applicant potentially posed a security concern to Hong Kong if he should be released on recognizance.  References were made to his two previous criminal convictions of common assault and criminal intimidation against a Muslim leader.  The Police also said he has displayed abnormal behaviour such as shaking his head during prayer or refusing to wear a face mask as he wanted to let Allah see his face.  His behaviour has caused concern to other worshippers.  The Police have maintained this position throughout the Applicant’s detention.

G.  Applicable Principles

44.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.

H.  The Applicant’s Submissions

45.I have referred to what the Applicant said in his supporting affirmation.  Besides his attempts to justify or to exculpate himself for the offences he was convicted of and the complaints concerning the deprivation of food arising from his fasting practice, he also put forward a permanent resident friend who was willing to stand as his surety.

46.As to the matters giving rise to the prior convictions, the Applicant has set out a lengthy and detailed explanation from his point of view.  I do not think I need to rehearse those matters, it being sufficient to record that the Applicant clearly takes a very different view of events and his own actions.  In any event, even his own explanation reveals that the stance he has taken, and presumably would continue to take, towards what he regards as the appropriate religious practice is not unlikely to create future friction of the sort which previously arose.  Of course, these proceedings are also not the occasion on which the Court will revisit the previous convictions, which have already been the subject of the appeals mentioned above.

47.At the oral hearing, the Applicant again sought to rehearse matters going back to 2017 in order to identify that he had been wrongfully convicted.  However, I reminded him that this hearing was not for the purposes of reviewing the correctness or otherwise of the convictions.  The hearing was to determine whether the Applicant’s immigration detention had continued in a way which rendered it unlawful, or might be unlawful in the foreseeable future.  I asked him to focus his submission on that key question.

48.As a result, the Applicant further submitted (in my short form summary of his points)  that:

(1)  The lengthy period of detention had become unreasonable, and hence unlawful.

(2)  When he was first detained at CIC, his request to be fed only after sunset was accommodated.  But when he was transferred to TGIC, that request was soon refused (after his judicial review leave application), so that in effect providing him with meals was stopped.

(3)  Various doctors had provided reference letters identifying that he was engaged in fasting, not attempting suicide, and asking for his religious choice to be honoured.

(4)  He had been sent to Siu Lam for mental assessment, when he had no mental issue and the only medicine he required was food.

(5)  Effectively depriving him of food by a rigid and harsh approach was subjecting him to torture and cruelty.

(6)  That was a breach of his human rights.

(7)  He was being punished to try to persuade him to go back to his own country.

(8)  He should be released on bail so that he could pursue a claim that he has been tortured or treated cruelly as a result of preventing him from eating.

(9)  The Police have described him as a threat, but all he did was to remove half of the mask from the Imam, whereas he was then beaten by 40 or 50 people which the Police refused to pursue notwithstanding his complaint of the assault.

(10)  People in Hong Kong have freedom of religion, and his love of God is not a crime.

49.I will bear all these points in mind – and mention some of them – in my analysis below as appropriate.

50.I will not, however, take into account in my analysis the list of criticisms and allegations which the Applicant also raised and made about the Imam at the mosque, as they do not seem to me to be ones I can sensibly address in the present context, and they are in any event not relevant to the key question to be resolved on this habeas corpus application.

I.  Whether Detention has become unlawful

51.The Removal Order is extant.  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.

52.I can address the Hardial Singh principles broadly below.  The starting point is that the Applicant has been detained up to today for a period of 532 days or about 17½ months.  This is clearly a very substantial period of time, and it is against that period that the other factors are to be weighed and balanced.

53.However, I have no doubt that the detention power has been used to facilitate removal throughout the entire current detention period.  HS1 is plainly satisfied.

54.I accept that from 26 January 2022 to 8 May 2023, the Director had acted with reasonable diligence and expedition in facilitating the Applicant’s removal. This is evident in the efforts spent in liaising with the Indian Consulate to replace the Applicant’s expired passport, as well as the request for the Court to accord priority in resolving the Applicant’s leave application.

55.I have some slight hesitation for the period after 8 May 2023.  By then, all removal obstacles had already been cleared.  It is not clear to me why the repatriation flight was only settled on 5 July 2023, almost two months later.  For the 1½ month period from 8 May 2023 to 21 June 2023 when this habeas corpus application was instituted, it is not clear if anything was done to facilitate his removal.  In the chronology provided by the DOJ, the only entry during this period is that the Applicant refused to receive the service of the “Notice of New Removal Policy”.  That was hardly an obstacle preventing the Director from proceeding with removal.

56.The more significant incident after 8 May 2023 was perhaps the TCGI’s decision on 12 May 2023 to resume the practice of not allowing the Applicant to have his meals after sunset.  Again, I cannot see how that of itself could facilitate his removal from Hong Kong (though I can understand the rationale).  I can also understand some concern arising from the fact that the Applicant’s requests have been accommodated on an ‘on-and-off’basis, namely accommodated for a period of time, and later then refused. 

57.But, on balance, I am satisfied that HS4 has been met.

58.It was rather unfortunate that the detention period might have lasted longer than what one would have thought when the detention began.  As of August 2022 – by then the period of detention was 7 months – the only remaining practical removal obstacle was the need to obtain a replacement travel document for the Applicant.  However, the detention period after August 2022 could have been substantially shortened had the Applicant chosen to be cooperative in replacing his travel document (though I note that it was only following the policy change in December 2022 that the CFI’s dismissal of the Applicant’s judicial review leave application was treated as an end to any part of the court proceedings as might have previously constituted an impediment to removal).  Plainly, the Applicant has contributed to the length of the period of detention by his own lack of cooperation.

59.The Applicant’s criminal record is not of the most serious or violent in nature that the Court has seen in similar applications. But the Police have viewed the Applicant as posing a security risk, based on his criminal record and apparently law enforcement information collected from the Muslim community.  The Police’s comments were considered by the Director. There is no reason for the Court to doubt the assessment on the subject matter by the law enforcement agents.  The Director is entitled to take it as a factor supporting continued detention, and I also take those comments into account and give them due weight.  As I have already noted, the vehemence of and repetition by the Applicant of his stance towards his religious practice and what he says was a wrongful conviction provides little comfort that the Applicant poses no risk, were he to be released on bail.  To put it bluntly, the Applicant is clearly significantly at odds with the Imam and various other members of the Muslim community.

60.I have given some serious thought concerning the Applicant’s detention conditions.  The daily food consumption situation running from 26 July to 21 September 2022 recorded by the Applicant is not disputed by the Director.  The fact that he was in and out of hospital so frequently during that two-month odd period suggests that his health was jeopardised by lack of food.  Nor does Mr Ko dispute that that the TCGI management has started to refuse accommodating the Applicant’s mealtime request since 12 May 2023 again.

61.In this Court’s previous judgments – for example, [2022] HKCFI 3474 and [2022] HKCFI 3475 – I emphasised that detention conditions are not to be overlooked.  In assessing whether a period of detention has become too long, the Court has to balance the gravity of any risk arising from release against the deprivation of liberty.  The magnitude of the deprivation of liberty primarily turns on the length of the period of detention, but detention conditions 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 his personal liberty.

62.This is not a judicial review application.  I am not asked to adjudicate on whether the TCGI management’s decision not to accommodate the Applicant’s chosen religious practice of daily fasting could be impugned on any public law grounds.  However, I might indicate that I am not presently inclined to think that there is any public law reason to interfere in that management decision, where the Applicant’s chosen religious practice seems well outside of the religious practice as advised by the Chief Imam, and where there must be real practical difficulties in accommodating any potential individual requests arising from that individual’s chosen approach to a way of life or religion.  I am also not persuaded that providing him with food outside of the period that he would wish it likely amounts to torture or cruel treatment.  But I do have to consider whether the detention conditions in the past and to be imposed in any future period of detention would render continued detention unreasonable and hence unlawful.

63.Regardless of whether the TCGI management is entitled to insist on not serving meals after sunset except during Ramadan under the Prison Rules or otherwise, the consequence of the TCGI’s insistence is that the Applicant would either have to choose to not eat or to give up his chosen practice or approach to his religion.  I accept that this might be said a restriction placed upon a detainee’s personal liberty.  I also acknowledge the view expressed by the doctors (see above), though I think it important to note that their views would be expressed from the medical point of view rather than specifically taking into account matters of managing a place of detention.

64.Fortunately, it seems that appropriate medical attention was provided from 26 July to 21 September 2022 whenever such attention was needed, and that the Applicant was able to have meals after sunset most of the time throughout the period of detention.  Ultimately, against the other factors, I do not think the question of the meals is a significant factor in the balance as might point towards a release on recognizance rather than continue detention.

65.Overall, weighing the period of detention to date – about 17½ months – against all the other factors, I am satisfied that the detention has continued and will likely continue in the foreseeable future to be lawful.  Indeed, the detention is due to cease tomorrow, upon the Applicant’s repatriation to India.

J.  Result

66.For these reasons, I dismiss the Applicant’s application for writ of habeas corpus with no order as to costs.

The applicant, acting in person

Mr Eric Ko, Senior Government Counsel, of the Department of Justice, for the respondent