Uddin Mohammed Nazim v. Director of Immigration and Another

HCAL 1347/2023

[2023] HKCFI 2191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1347 OF 2023

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DECISION

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A.  Introduction

1.The Applicant is the subject of a Removal Order dated 3 October 2017 and a Deportation Order dated 7 February 2023. He has been held in immigration detention since 1 February 2023, pending his removal from Hong Kong. To the date of this hearing, the detention has lasted 197 days, or approaching 6 months.

2.On 3 August 2023, the Applicant applied for writ of habeas corpus seeking his immediate release from detention. On 7 August 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 Respondents 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 Bengali/English interpreter.

4.This is my Decision.

B.  Immigration Status

5.The Applicant is a Bangladeshi national, born in 1985. He was first spotted in Hong Kong by the police as a suspected illegal immigrant on 21 June 2015. Two days later, i.e. on 23 June 2015, he lodged a non-refoulement claim (“NRC”) as a result of which the Director has tolerated his unlawful stay in Hong Kong pending the resolution of his NRC and subsequent legal proceedings.

6.As of 7 August 2023 – about 8 years since the NRC was lodged – the legal proceedings arising from his NRC had reached the stage of his application for leave to appeal to the Court of Final Appeal (“CFA”), now pending the resolution of the CFA. However, that the Applicant’s present NRC related proceedings are continuing is no longer viewed by the Secretary or Director as an impediment to his removal from Hong Kong. This is a consequence of the change of remove policy in force since 7 December 2022, to the effect that once an NRC claimant’s subsequent legal proceedings have reached the stage of being rejected by the Court of First Instance (“CFI”), the existence of further proceedings will not normally be considered by the authority as an impediment to removal.

7.During his stay in Hong Kong, the Applicant has been convicted on two occasions. On 7 April 2016, he was convicted of theft for which he was fined HK$1,000. On 26 April 2022, he was sentenced to 422 days’ imprisonment for illegally remaining in Hong Kong. The latter offence is what may sometimes be referred to as a “deportable offence” and which formed the basis for the issuance of the Deportation Order on 7 February 2023.

8.When the Applicant was discharged from prison upon the completion of his sentence, he was transferred to the Immigration Department. That started the present immigration detention the subject of this habeas corpus application.

C.  Steps towards Removal

9.When the detention started on 1 February 2023, the Applicant NRC related proceedings had already ceased to be an impediment to removal (as explained above). The only obstacle standing in the path of removal was the need to replace his Bangladeshi passport, which expired in 2017.

10.The Director’s efforts in obtaining a travel permit for the Applicant to return to Bangladesh started with a letter dated 15 November 2022 issued to the Bangladesh Consulate General. By 21 December 2022, the Consulate had already verified the Applicant’s identity. Both actions pre-dated the commencement of the present detention.

11.After the Applicant was taken into custody on 1 February 2023, the Director also managed to secure from him a completed emergency travel document application form, on 21 February 2023.

12.Apparently, the next usual step towards the issuance of such a travel document was for the Applicant to attend an interview with the Consulate, which the Director also managed to procure on 8 May 2023, despite the Applicant s having previously refused to do so twice.

13.A travel permit was eventually issued on 21 June 2023. A ticket for a return flight to Bangladesh fixed for 8 August 2023 was also purchased on 31 July 2023. In view of this habeas corpus filed on 3 August 2023, the Director has now re-scheduled the repatriation operation to 28 August 2023, i.e. next Monday.

D.  Applicable Principles

14.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.

15.I keep in mind that the burden is on the Director/Secretary to demonstrate the continued detention of the Applicant has remained, and will for the reasonably foreseeable future remain, lawful.

E.  The Applicant’s Submissions

16.The Applicant exhibited to his supporting affirmation three pages of hand written notes and a copy of some of his documents related to his NRC related court proceedings.

17.In the hand written notes:

(1)  The Applicant referred to his leave application which is now pending the resolution of the CFA. It appears that he had not fully understood the effect of the change of removal policy made in last December and still believes that the Director or the Secretary would not remove him as long as his NRC related proceedings are still ongoing. From such a (mistaken) belief, he said the authority has no prospect to remove him within a reasonable time.

(2)  He also said the detention is against Hong Kong’s international obligations or the Basic Law. But he did not explain that any further.

(3)  He said he would not commit any offence if released on recognizance. He will present no threat or security risk to the community. He also said that he would not abscond.

(4)  He ended his note by proposing terms of recognizance that he is willing to accept: residing in a particular address, reporting immigration recognizance on a weekly basis, notifying the Director within 24 hours of any change in address, and any other conditions which the Director may think appropriate.

(5)  He also said the unlawful detention has inflicted on him psychological trauma and mental harm on a daily basis. He also referred to affecting his physical health (and I note some reference on the papers to a heart condition).

18.At the hearing this morning, the Applicant said that he did not wish to add anything new to those matters already covered in writing, but asked me carefully to consider his case and let him know the decision. He emphasised that he had already served 422 days’ imprisonment, and was now being detained without any further charge.

19.The Applicant did hand up two documents. The first was an extract of the Harjang Singh decision, including its summary of principles in §164: see above. The second was a letter from the High Court giving the Applicant certain directions in relation to his magistracy appeal in mid-2022. I do not think either document adds to the necessary analysis.

20.As an aside, the Applicant also wanted to point out that some of the papers provided to him by the immigration Department appeared to relate to matters not for him or on his file. For the avoidance of doubt, even if correct, it also does not alter the necessary analysis, which focuses on the Applicant’s own individual position and circumstances.

21.I have carefully taken into account those matters raised by the Applicant, but again remembering the burden is on the Director/Secretary to justify the continued lawfulness of detention.

F.  Whether Detention has become unlawful

22.There was and remains clear prima facie lawful authority for the detention.

(1)  From 1 February 2023 to 7 February 2023, he was detained under section 29 of the Immigration Ordinance Cap 115 (“Ordinance”) which authorises the detention of a person for the purpose of making enquiry as to whether a deportation order should be issued against him.

(2)  Ever since the Deportation Order was issued on 7 February 2023, he has been detained under section 32(3) of the Ordinance which authorises the detention of a person against whom a Deportation Order is issued pending his deportation from Hong Kong.

23.Therefore, the question arises as to whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

24.The starting point is the length of detention – being 197 days in the present case – against which all the other factors must be weighed and balanced.

25.I have no doubt that HS1 and HS4 are satisfied. The chronology set out above has clearly indicated that the Director has always been detaining the Applicant for the purpose of deportation, and has been working diligently and expeditiously towards that end.

26.The only removal obstacle at all material times has been the need to obtain a valid travel document to facilitate his return to Bangladesh. Despite the Applicant’s intermittent display of unwillingness to return and his refusal to cooperate in completing some of the application procedures, the Director has been able to push through the various application steps.

27.The travel document was eventually issued in a little less than 5 months after the Applicant was taken into custody. It may have taken a shorter period if the Applicant had been cooperative throughout. Once the travel permit was ready, the Director put in place a repatriation operation scheduled for 8 August 2023. But for the habeas corpus application filed on 3 August 2023, the Applicant could have been released from detention by now – albeit in Bangladesh.

28.As it stands, the Applicant will be released from detention next Monday, 28 August 2023 – again, albeit in Bangladesh.

29.I note that the Applicant’s criminal record is not amongst the most serious as this Court has seen in habeas corpus applications of this sort. Nor does the Applicant have any record of absconding. But I am informed by the Director that after travel permit was issued, the Applicant has stated that he would not cooperate with any removal arrangement. His professed choice not to cooperate in any removal arrangement is partly demonstrated in the institution of this habeas corpus application, the objective effect of which is to delay his repatriation – and hence delay the very released from detention which this application otherwise seeks to achieve. Further, there is apparently little close connection in Hong Kong. Therefore, I think there is some real risk of absconding to be taken into the balance. This is a case in which the risk of absconding appears to have become more real as the removal/deportation has become more imminent.

30.Insofar as the Applicant may have a heart condition, or indeed any other health issue, I accept Mr Ko’s submission that medical care facilities are available to the Applicant at his place of detention, and elsewhere if required. I do not think that the Applicant’s health conditions point as a factor in favour of release prior to his imminent removal/deportation from Hong Kong.

31.Overall, weighing the period of detention – around 6 months – against all the other factors including that repatriation is imminent and that he will be soon released from detention (albeit in Bangladesh), I am satisfied that HS2 and HS3 are met.

32.In consequence, the period of detention to date has remained lawful at all times, and will remain lawful for the foreseeable future.

G.  Result

33.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 respondents