Biplob Sm v. Director of Immigration and Another

HCAL 1085/2023

[2023] HKCFI 1917

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1085 OF 2023

________________________

BETWEEN

________________________

________________________

D E C I S I O N

________________________

A. Introduction

1.The Applicant is the subject of a Removal Order and a Deportation Order made on 20 November 2006 and 8 June 2023 respectively.  Since 25 April 2022, he has been held in immigration detention authorized by various sections of the Immigration Ordinance Cap 115 (“Ordinance”).  To the date of this hearing, the detention has lasted 456 days, or about 15 months.

2.On 4 July 2023, he applied for a writ of habeas corpus seeking his immediate release from detention.  On 6 July 2023, I gave leave for the Respondents to file and serve a written response and the necessary directions to bring the matter to today’s hearing.

3.At the hearing, the Applicant appeared in person with the benefit of a Bengali/English interpreter.  The Director and Secretary were represented by Ms Augusta Wong, Government Counsel, who also signed the written response.

4.This is my Decision.

B.  Applicant’s Immigration Status

5.The Applicant is a Bangladeshi national.  He is also a returned removee, having been removed from Hong Kong twice in the past.

6.He has used 11 identities, bearing different names and/or dates of birth, in Hong Kong.  Some of identities were used to enter Hong Kong.  The name identified in the action title is the identity he used in the most recent entry to Hong Kong, which occurred in January 2006.

7.He first entered Hong Kong in 1999 as a visitor.  He did not depart within the limit of stay granted to him and was eventually arrested for overstaying.  He was convicted of breach of condition of stay, a removal order was made, and he was removed from Hong Kong in April 2000.

8.The Immigration Department’s available records show that, in May 2001, and while using another identity, the Applicant was sentenced to 2 months’ imprisonment for breach of condition of stay. Assuming he was indeed in Hong Kong on the date of sentence, he must have illegally entered Hong Kong off the record at some point after his first removal.

9.On the record, the Applicant entered Hong Kong as a visitor again in February 2002, but under different identity and with a different date of birth than his first entry on record.  Following the same pattern of events leading to his first removal, he was removed for the second time in May 2005.

10.He later entered Hong Kong again in January 2006, under the name as stated in the title of this action, also as a visitor. Following the same pattern, he was later arrested for overstaying and a third removal order (being the Removal Order identified in the introductory paragraph above), was made against him on 20 November 2006.  But by then, he had already lodged what has become known as a non-refoulement claim (“NRC”).  The claim was lodged on 12 September 2006.

11.By the operation of section 37Z together with the removal policy which had been adopted by the government until December 2022, the Director would not remove a non-refoulement claimant from Hong Kong while his NRC or subsequent legal proceedings are still afoot.

12.In the 13-odd years from September 2006 to December 2019, he eventually exhausted all available administrative avenues for his NRC, following rejection of his claim and the dismissal of his appeal to the Torture Claim Appeal Board/Non-refoulement Claims Petition Office (“Board”).  He once attempted to make a subsequent claim, i.e. a further NRC, but that was rejected by the Director in November 2020.

C.  Criminal Record & Absconding Record

13.The Applicant has a long criminal and sentence record:

(1)  On 25 March 2000, he was sentenced to 2 months’ imprisonment suspended for 2 years for breach of condition of stay.

(2)  On 4 May 2001, he was sentenced to 2 months’ imprisonment suspended for 2 years for breach of condition of stay.

(3)  On 11 September 2004, he was sentenced to a total of 11 months for (a) breach of condition of stay, (b) making a false representation to an immigration assistant, and (c) breach of suspended sentence.

(4)  On 13 September 2006, he was sentenced to a total of 4 months for (a) making a false representation to an immigration officer, (b) making a false representation to an immigration assistant, and (c) breach of condition of stay.

(5)  On 5 April 2013, he was sentenced to 4 months’ imprisonment for possession of a dangerous drug.

(6)  On 17 January 2018, he was fined HK$500 for gambling in a gambling establishment.

(7)  On 4 February 2019, he was sentenced to a total of 11 months for (a) theft, (b) blackmail, and (c) possession of a dangerous drug.

(8)  On 15 June 2021, he was sentenced to 38 months’ imprisonment for trafficking in dangerous drugs.

14.He also has the following absconding record:

(1)  He failed to report immigration recognizance on 14 September 2012 and only came back ‘on the radar’ again more than 3 months later, on 26 December 2012, upon his arrest by the police for possession of a dangerous drug.

(2)  He jumped court bail on 8 November 2018.

(3)  He failed to report recognizance since 20 November 2018 until he was arrested by the police some 2 months later, on 13 January 2019.

D.  Steps towards Removal

15.He completed his last prison term on 14 April 2022, and he was then transferred to a facility for quarantine until 25 April 2022.  Upon the completion of quarantine, he was transferred to the Immigration Department, marking the beginning of the present period of detention.

16.By the time the detention began, no action relating to his NRC had been maintained since December 2019, when his NRC appeal was rejected by the Board.  He was free from any NRC-related impediment to removal, either arising under the Ordinance or under the Government’s then removal policy.

17.What was needed to effect the removal of the Applicant was to obtain a valid travel document for him to enable his re-entry into Bangladesh.  To this end, the Director had started liaison with the Bangladeshi Consulate since May 2020, about 2 years before the present detention started.  Liaison for this purpose had resumed shortly before the Applicant was taken into detention on 25 April 2022.

18.On 20 December 2022, after months of correspondence, the Consulate eventually issued a travel permit for the Applicant, with a validity period of 3 months.  As at 20 December 2022, all removal obstacles had been cleared.

19.However, the period where the Applicant was free from all removal obstacles was rather short-lived.  Before that travel permit could be put to use, a new removal obstacle came into place.  On 17 January 2023, the Applicant sought leave from the Court of First Instance (“CFI”)  to challenge, by way of judicial review, the Board’s decision to refuse his NRC appeal.  As the Board’s decision was made in December 2019, his judicial review leave application was about 34 months out of time. It might be thought to have been an obvious tactical ploy to seek to erect an impediment to removal as a reaction to being held in detention when the practical obstacle to removal had been cleared.

20.By letter dated 21 February 2023, the DOJ on behalf of the Director urged the Court to accord priority to the Applicant’s leave application, given that he was held in detention.

21.On 21 March 2023, upon the Director’s liaison, the Bangladeshi Consulate also issued another travel permit to the Applicant, also with a validity period of 30 days.

22.On 11 May 2023, the CFI refused to extend time for the Applicant to seek leave for judicial review.

23.Whilst the Applicant did take further legal proceedings, the removal obstacle arising from NRC related legal proceedings were officially put to an end by 11 May 2023.  This is because the Director has changed his removal policy with effect from 7 December 2022 such that once a claimant’s NRC has reached the stage of its subsequent legal proceedings being rejected by the CFI, the existence of any further proceedings, would not be seen as a removal obstacle unless and until the CFI’s refusal has been overturned.

24.By 11 May 2023, the second travel permit issued by the Bangladeshi Consulate had already expired.  On 11 July 2023, a third travel permit was issued, with a validity period expiring on 11 October 2023.

25.Meanwhile, the Principal Assistant Secretary for Security had issued a Deportation Order against the Applicant on 8 June 2023.

26.A repatriation operation has been promptly put together by the Director once the third travel permit was issued.  A seat on a flight to Bangladesh scheduled for 26 July 2023 has been booked for the Applicant.

E.  The Applicant’s Submissions

27.In the affirmation filed in support of his habeas corpus application, the Applicant exhibited ten pages of handwritten notes, his medical records, a copy of the birth certificate of his daughter, pictures of the daughter and what may appear to be written or drawing exercises done by his daughter.

28.The written notes could be summarized in 3 topics: (a) matters concerning his daughter, (b) his medical condition, (c) his attempts to rebut what may be relied upon by the Director to continue to detain him.  In my summary below, I will also supplement information provided by the Director for ease of understanding.

29.In respect of his daughter:

(1)  As shown in the birth certificate attached, the daughter was born in January 2018 and is about 5 years old now.

(2)  I am informed by the Director that the daughter was born to the Applicant’s girlfriend, who is an Indonesian non-refoulement claimant.  The daughter is also a claimant.  The judicial review proceedings arising from their NRC were dismissed by the CFI in September 2021.  The mother is a subject of a deportation order, and the daughter a removal order. The mother has been held in immigration detention pending her removal after she was discharged from prison.  The daughter is now under the care of International Social Services.  Both the mother and the daughter will be removed to Indonesia within a reasonable time.

(3)  The Applicant said he has applied for legal aid to fight for the custody of the daughter.  But according to the information provided by the Director, the legal aid application had already been rejected on 12 May 2023.

(4)  He said his continued detention has denied his and his daughter’s rights to be together.  This has negatively impacted the daughter.  It has been shown that children separated from their parents would tend to develop various issues.  The separation also caused anxiety, depression and constant sadness to the Applicant.

30.In respect of his health condition:

(1)  The Applicant said he is in very poor health condition, and his condition has deteriorated because of the continued detention.

(2)  He collapsed once whilst detained in Castle Peak Bay Immigration Centre and twice whilst detained in Tai Tam Gap Correctional Institute.

(3)  He has had a heart surgery in March 2022 and has a second surgery scheduled towards the end of this year.  According to information provided by the Director, the Applicant had a “percutaneous coronary intervention” at Princess Margaret Hospital whilst he was serving his prison term.

(4)  He said the detention conditions are not conducive to his recovery as prescribed by the doctor.  The doctor recommends lots of vegetable and fruit, but he is only given an orange a day in detention.  The doctor recommended the Applicant to stay “tension free” but that is not possible in detention.  He has difficulty using the shower due to the many steps of stairs he has to take.

31.In respect of matters which might be taken against him in support of continued detention:

(1)  He acknowledges that he is a repeat offender and has absconding history.  He would modify his behaviours.  He will stay away from crime.  His intention to take custody of his daughter mitigates against any risks of absconding and re-offending.

(2)  HS1 is not satisfied.  The detention is used for purposes other than detention.  He has been detained for 436 days without removal, which calls into question why he is being detained.

(3)  HS2 is not satisfied.  It is unreasonable to detain him for a period of over 436 days.

(4)  HS3 is not satisfied as the reasonable period to detain the Applicant has now expired.  A period of 436 days is very sufficient for someone to be detained in administrative custody.

32.At the oral hearing, the Applicant asked for a letter written in Bengali to be interpreted to the Court, and made a few further points.  In my summary of his points, he submitted that:

(1)  There is a hearing on 3 August 2023 in the context of his judicial review application (which is the hearing fixed to be heard by the CFI, where the Applicant seeks leave from the CFI to appeal to the Court of Appeal from the CFI’s refusal of the necessary extension of time to challenge the decision of the Board: see above).

(2)  There is a hearing on 7 September 2023, which is his Legal Aid Appeal against the refusal of legal aid for his desired claim of custody rights relating to his daughter.

(3)  Insofar as it is said that he jumped bail, he merely forgot.

(4)  For the 2 to 3 times when he previously came to Hong Kong, he has already been punished by the immigration Department.

(5)  He asks that his health condition be taken into account, and that it should lead to the grant of bail.

(6)  He suffered a heart attack on 25 March 2022, and had emergency surgery followed by hospitalisation for seven days.  Since then he has had follow-up consultations every two months, and remains on medicine. His condition is not developing, but is deteriorating.  He finds it difficult to breathe, and has fainted on two or three occasions, and was taken back to hospital for four days.

(7)  He is concerned that he might suffer a further heart attack in detention, and die.

(8)  His daughter is 5½ years old, and needs her father’s love.  He wants to raise her and educate her as a Muslim, which is his duty.  His daughter does not know his language, and when she visits she cries and calls him daddy.

(9)  As a father, this makes him feel sad.

33.I will bear these points in mind in my analysis below, and make reference and give weight to them as seems to me to be appropriate.

F.  Applicable Principles

34.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.

35.The essence is that an originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

G.  Whether Detention has become unlawful

36.The Applicant has always been detained pursuant to prima facie lawful authority since 25 April 2022:

(1)  From 25 April 2022 to 24 May 2023, he was detained under section 32(3A)  which authorizes the detention of a person against whom a removal order is made pending his removal.  The Removal Order remains extant.

(2)  From 25 May 2023 to 8 June 2023, he was detained under section 29 which authorizes detention for the purpose of enquiring if a deportation order should be made.  The Deportation Order was made on 8 June 2023.

(3)  From 8 June 2023 till now, he has been detained under section 32(3)  which authorizes detention of a person against whom a deportation order has been made.  The Deportation Order remains valid and subsisting.

37.The question then arises whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

38.The starting point is that the Applicant has been detained up to today for a period of 456 days, or a little over 15 months.  That is a substantial period of administrative detention.  It is against that period that the other factors are to be weighed and balanced.

39.I can address and apply the Hardial Singh principles broadly in turn, as follows.

40.I have no doubt that the Director has always been using the detention powers for the purpose of removal/deportation, and he has been acting with diligence and expedition throughout the entire period. This is evident in his efforts in resolving both the obstacles arising from the belatedly filed leave application and the travel document issue.  HS1 and HS4 are satisfied.

41.As early as 20 December 2022 – when the Applicant was issued the first travel permit – he was cleared of all removable obstacles. By then, the immigration detention had lasted for 8 months.  Yet, the Applicant quickly responded by making a much belated judicial review leave application on 17 January 2023, and thereby creating a legal impediment to his removal.  As already stated, the timing of the judicial review application, which was only issued 34 months out of time and shortly after he was issued a travel permit to enable his return to Bangladesh, strongly tends to suggest that the late application was but a tactical manoeuvre deliberately to delay his return.

42.Whilst it was open for the Applicant to file a leave application, even one that was 34 months out of time, he did not have to do so.  The inevitable consequence of his action was that his removal – which was otherwise ready – would be delayed.  In other words, the cessation of detention which would have occurred upon his removal was delayed as a result of his own actions.

43.Given that the DOJ promptly informed the Court that the Applicant was in detention and requested priority for his leave application to be dealt with by the CFI, it was not unreasonable to expect that a decision would be made within a reasonable time.  

44.The renewed application to the CFI, seeking leave to go to the Court of Appeal, which will be dealt with at the hearing on 3 August 2023, does not amount to a legal impediment under the updated removal policy.  I agree with Ms Wong that the application can be dealt with appropriately, without the presence of the Applicant in court.  In any event, the application does not appear to have any significant merit as would carry weight as a factor in the present consideration.

45.I also agree with the Director that there is a real risk off re-offending and absconding.  Risks of reoffending and absconding are of paramount importance when considering if a detainee should be released on recognizance. 

46.The Applicant has a long criminal record, with the most serious conviction (notably, the last conviction)  bringing him a prison term of 38 months.  Offences were committed whilst the Applicant had been released on recognizance.  The Applicant’s lack of respect for the law, and for the conditions of his release, is evident.  The risk of his re-offending is not low, and the potential consequences are serious. 

47.The Applicant is also a returned removee, who has been removed from Hong Kong twice before.  But he returned by using different identities, and he plainly has no hesitation in seeking to disguise his identity so as to avoid detection.  He has also consistently indicated unwillingness to return Bangladesh throughout the period of the present detention.  All these matters highlight his strong determination to remain in Hong Kong, and thus the risk of his failing to show up at the airport the day after tomorrow.   Absconding would frustrate the very purpose the detention power is granted.

48.Further, the family considerations have little weight against the overall circumstances of this case.  I give little weight to his claimed concern for his daughter.  Since the daughter was born in January 2018, the Applicant was sentenced to 11 months in February 2019 for theft, blackmail and possession of a dangerous drug.  He was later sentenced to 38 months on 15 June 2021 for trafficking in dangerous drugs.  The chronology suggests that after his daughter was born he had spent the main portion of his time in prison (and then in immigration detention).  He could not have been a primary or substantive carer for the daughter.  It is also clear that having a daughter has not caused the Applicant to rethink his criminal activities, and his jumping bail or acting in breach of the conditions of his release.

49.I acknowledge that the Applicant sought legal aid to fight for the daughter’s custody, care and control, but only around May 2023 when the daughter was more than 5 years old and when he was detained pending his removal from Hong Kong.  I also acknowledge that the refusal of legal aid is subject to the appeal which will be heard in September 2023.  But I agree with Ms Wong that the appeal can be determined appropriately, without the Applicant’s presence in court.

50.There is no reason to doubt that the daughter is not receiving proper care from Internal Social Services.  In any event, both the daughter and the mother are liable to removal from Hong Kong to Indonesia in the reasonably foreseeable future.  The Applicant would be free to visit or reunite with his daughter and her mother, somewhere outside Hong Kong, should they wish to do so.

51.Insofar as his medical conditions are concerned, I agree with Ms Wong that appropriate medical attention has been provided to him both from medical sources in the detention centre or by taking him to visit a public hospital, and there is no reason to believe that the Applicant would not receive proper medical treatment in future during any remaining period of detention.

52.There is neither a legal nor practical impediment to deportation of the Applicant, who is due to be removed/deported on 26 July 2023.  In other words, the Applicant’s detention will cease on that date (just two days from now), albeit upon his deportation.

53.Looking at matters overall, and weighing all the other factors against the detention period of 456 days, including that repatriation is imminent and he will be released from detention 2 days later albeit in Bangladesh, I am satisfied that the detention of the Applicant has remained and will remain or continue for a period which is reasonable and lawful.  HS2 and HS3 are satisfied.

H.  Result

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

55.I make no order as to costs.

The applicant, acting in person

Ms Augusta Wong, Government Counsel, of the Department of Justice, for the respondents