Amin Sheikh Al v. Hong Kong Sar Government

HCAL 1483/2023

[2023] HKCFI 2467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1483 OF 2023

________________________

________________

_________________

D E C I S I O N

_________________

A.  Introduction

1.The Applicant is subject to a Removal Order issued on 30 December 2013, under section 19 of the Immigration Ordinance Cap 115 (“Ordinance”). He claims to have entered Hong Kong illegally on 9 October 2013, and after an initial short period of immigration detention upon arrest for suspected illegally remaining, the Applicant had been released on recognizance from November 2013 until its cessation on 19 October 2021.

2.Since that date, the Applicant has been held in immigration detention, for a period of 714 days to date. That is obviously a very long time. However, as will be seen below, a substantial part of that period is the result of the Applicant’s own obstruction and intransigence.

3.By application filed on 22 August 2023, the Applicant applies for a writ of habeas corpus, seeking his release from detention. I gave directions for the respondent Director of Immigration to file an initial response, and to bring the matter to a hearing today.

4.At the hearing, the Applicant has appeared in person with the benefit of a Bengali/English interpreter. The Director has been represented by Ms Cassandra Fung, Government Counsel, who signed the initial response.

5.This is my Decision.

B.  Background

B.1  Immigration Status and NRC

6.The Applicant is a Bangladeshi national, who entered Hong Kong illegally on 9 October 2013. As stated, a Removal Order was made against him on 30 December 2013. The Removal Order remains valid and extant.

7.On 17 October 2013, the Applicant lodged a non-refoulement claim (“NRC”). On 7 July 2016, the Director refused his NRC. On 28 June 2017, the Applicant was invited to submit additional facts for his NRC relating to BOR2 assessment. The Applicant failed to provide any response and, on 20 July 2017, the Director refused the NRC on BOR2.

8.The Applicant appealed the Director’s decisions to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”). On 24 November 2017, the Board dismissed the Applicant’s appeal/petition.

9.The Applicant then filed an application for leave to apply for judicial review, seeking to challenge the decision of the Board. The application was refused, but then the Applicant pursued the matter through the Court system until ultimate refusal by the Appeal Committee of the Court of Final Appeal on 30 July 2020.

10.The Applicant then requested to make a ‘subsequent claim’. Despite being invited to provide further information and evidence in support of it, the Applicant failed to do so. His subsequent claim request was refused by the Director on 13 July 2021.

11.Nevertheless, on 7 September 2021, the Applicant then filed an application for leave to apply for judicial review against that refusal. That application was dismissed on 18 October 2021. At the same time, a restrictive proceedings order (“RPO”) was made.

12.At that point, the Director decided to cease the Applicant’s recognizance given that there was no legal impediment to removal. The Applicant was arrested and detained under section 32(3A) of the Ordnance, which authorizes detention of a person subject to a removal order, pending removal from Hong Kong.

13.In February and August 2022, the Applicant made various submissions to the Director seeking to reopen his NRC, for the reasons already rejected. The Director refused to allow that. On 31 May 2023, the Applicant requested to make a second ‘subsequent claim’, which the Director rejected on 9 August 2023.

B.2  Efforts at Removal

14.Even before the present period of detention commenced, the Director requested the Bangladeshi Consulate to issue a replacement travel document to the Applicant. On the day the present period of detention commenced, the Applicant’s travel document application form and photo were secured.

15.However, since that time, the Applicant has been interviewed and has expressed unwillingness to return – on at least 37 occasions. He has also flatly refused to cooperate in any step for the application of the travel document, or with any removal arrangement (including completion of re-entry formalities). The Applicant has chosen that course of action, notwithstanding repeated reminders that acting in that way would simply lengthen his repatriation process, and hence removal, and hence release from detention.

16.Throughout the period of detention, the Director has pressed the Consulate to issue the replacement travel document, including by requesting assistance to explore alternative means of issuing a replacement travel document in view of the Applicant’s uncooperative behaviour. The Applicant’s identity was verified by the Consulate as early as in February 2022. The Consulate also made clear that the travel document could be issued within a month after conducting an interview with the Applicant, were he to attend one. However, the Applicant consistently refused to attend scheduled interviews, even a phone interview as recently as 12 September 2023.

17.In other words, having already launched this habeas corpus application supposedly to seek his release from detention, the Applicant continued to seek to block the steps which would enable his release from detention (albeit in Bangladesh).

18.Ultimately, on 13 September 2023, the Consulate issued a travel permit for the Applicant (valid for three months). With that to hand, a flight ticket has been purchased for the Applicant’s intended removal on 5 October 2023 (in two days’ time).

B.3  Present Detention

19.In addition to the various interviews conducted with the Applicant seeking to persuade him to cooperate with the arrangements to facilitate his return to his home country, various reviews of detention have been conducted by the Director. On each occasion, continued detention was endorsed.

C.  Applicable Principles

20.The applicable principles in the present context are well established. They have been summarized by the Court of Appeal in its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781. 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

21.The burden is on the respondent to an application for habeas corpus to justify the continued detention as remaining lawful.

D.  Applicant’s Submissions

22.Almost the entirety of the materials filed by the Applicant in support of this application are materials only relevant to his NRC and his subsequent claim requests. That may be the result of a common misconception apparently held by many detained persons subject to removal from Hong Kong, when there is no legal impediment to that removal, that this application is another NRC-related judicial review.

23.But, a habeas corpus application is not for the purposes of raising or re-running a NRC. The Court hearing a habeas corpus application does not decide whether the applicant in the case should or should not be removed from Hong Kong. The Court is concerned only with the question of whether the person’s detention has been and can continue to be lawful. Here, the Applicant is subject to a valid and extant Removal Order. There is no legal impediment to his removal, and he will be removed. The question with which the Court is concerned on this application is whether he has been lawfully detained to date, and whether he can continue to be lawfully detained for the foreseeable future, pending that removal.

24.It is also appropriate to repeat that, though the Court engages in an exercise of judgment by weighing and balancing different factors, no discretionary exercise is conducted by the Court; detention is either lawful, or it is not.

25.The only matter in his written materials which may touch upon the circumstances of his detention, and hence possibly its lawfulness, relates to the Applicant’s medical condition.

26.At the hearing, I explained to the Applicant that most of the material he had previously filed was not directly relevant to this habeas corpus application. I also explained to him the proper question to be addressed on this application, namely relating to the lawfulness of his detention. The Applicant expressed understanding, and made the following points (in my summary of them):

(1)  He has been in Hong Kong for 11 years, and so far has a clear criminal record.

(2)  However, he has been detained for the last 24 months.

(3)  Now he is threatened that he will forcibly be sent back to his home country, and the Director has been trying hard to arrange that.

(4)  Actually, he was sentenced to life imprisonment in his home country, and does not wish to return.

(5)  He does not know how and ‘out pass’ has been arranged for him, without his consent and without his attending any interview.

(6)  He says that he called his Consulate on 29 September 2023, and the person he spoke to had no idea about the ‘out pass’.

(7)  Any person who has been detained for a long time will suffer mental and other health deterioration. He is in the same boat.

(8)  Sometimes, even, detainees pass away.

(9)  He has a list – which he passed to the Court – of the occasions on which he has sought and obtained medical advice or assistance, and the diagnosis on each occasion. The list identifies 41 dates on which the Applicant sought assistance relating to various ailments such as finger injuries, knee ankle and foot pain, URTI, body tremors, constipation, dermatitis and bowel colic.

(10)  He will be grateful if the Court would kindly consider and make an order for his release from detention.

27.Save for the points relating to why the Applicant says he does not wish to return to his home country, I take these various points into my consideration below, and give each factor such weight in the balance seems to me to be appropriate.

E.  Whether Detention is Lawful

28.There is clear prima facie lawful authority to detain the Applicant. It is to be found in section 32(3A) of the Ordinance, which (as stated above) authorizes the detention of a person subject to a removal order, pending removal pursuant to and giving effect to that order.

29.Therefore, the question arises as to whether the overall circumstances of the Applicant’s detention have rendered it unreasonable, and hence unlawful.

30.The starting consideration must be from the period of detention to date, in this case the very substantial period of 741 days, almost 2 years. It is against that period that the other factors are to be weighed and balanced, in the context of the Hardial Singh principles – which can be addressed as follows. As the period of detention lengthens, the weight to be given to the individual factors may vary.

31.It is clear that the Applicant has been detained solely for the purpose of effecting his removal. Indeed, his long period of release on recognizance ceased at the point when there was no further legal impediment to removal. He was taken into detention so as to be removed. HS1 is satisfied.

32.It is also clear that the Director has been acting throughout with reasonable diligence and expedition to effect the Applicant’s removal. The Applicant himself seems to accept this, but it is anyway evident from the attempts to counsel and persuade the Applicant to cooperate with the necessary steps, and then to persuade the Consulate to issue a replacement travel document for the Applicant, notwithstanding his refusal to cooperate. It is the result of the Director’s diligence that the travel document has eventually been issued, and the repatriation flight now arranged. HS4 is satisfied.

33.Indeed, it is the Applicant’s own actions, or refusal to act, which have caused the bulk of the delay in his release, from when he was first detained. The Applicant demonstrated a clear understanding of the possible consequences arising from his lack of cooperation in the re-entry arrangements, and was repeatedly reminded of the adverse consequences. Nevertheless, he has persistently and repeatedly refused to cooperate on any removal arrangement, including refusing to attend interviews on six scheduled occasions, even one by telephone.

34.On the materials, an emergency travel document could likely have been issued by the Consulate within around one month after the Applicant had attended an interview. But for his self-obstructing conduct, the Applicant could and would have been removed from Hong Kong – and hence released from detention – a long time ago. As in many other cases, it is ironic and inappropriate that the Applicant seeks his release from detention on the basis of its unreasonable length, when he has been the primary author of that length of detention, arising from his own unreasonableness. I give significant weight to this factor, pursuant to section 32(4A)(d) of the Ordinance.

35.I put no weight on the suggestion apparently made by the Applicant this morning that the Consulate had no knowledge of the travel document, which it had obviously recently issued. The Applicant may well have hoped that his obstruction would prevent the issue a travel document, but ultimately he caused only delay.

36.I acknowledge the lack of any history of absconding – or of any criminal conduct in Hong Kong – by the Applicant. However, I agree with Ms Fung that, nevertheless, a real and substantial risk of absconding is shown by the Applicant’s persistently stated unwillingness to return to Bangladesh, his own uncooperative attitude, his lack of family ties or close local connections, and his previous abusive conduct seeking to re-litigate his NRC so as to prolong his stay. Absconding would frustrate the very purpose of the Removal Order.

37.I also agree with Ms Fung that, now that removal has become extremely imminent, the risk of absconding has become even more real. I think there is a real risk that, if released on recognizance, the Applicant would fail to appear at the airport for his repatriation flight on 5 October 2023.

38.I have considered the attachment of certain medical records to the Applicant’s written materials, as well as the list of occasions on which he sought medical advice. I acknowledge the number of occasions, and the diverse medical complaints. But they do not seem to me to identify significant medical issues for which he has been unable to obtain appropriate treatment whilst in detention (including, if necessary, from external medical resources).

39.Looking at the factors overall – and keeping firmly in mind the very long period of detention to date, approaching 2 years – I am satisfied that the Applicant has been detained for a period that is reasonable in all the circumstances. HS2 is satisfied.

40.Now that removal has been scheduled to take place in just two days’ time, a real sense of the timescale for removal can be seen. In other words, the Director will be able to effect removal within a reasonable period. HS3 is satisfied.

F.  Result

41.The Applicant’s application for writ of habeas corpus is dismissed, with no order as to costs.

The applicant, acting in person

Ms Cassandra Fung, Government Counsel, of the Department of Justice, for the respondent