Arif v. Director of Immigration and Another

HCAL 1505/2023

[2023] HKCFI 2518

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1505 OF 2023

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D E C I S I O N

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A.  Introduction

1.The Applicant claims to have entered Hong Kong illegally on 21 November 2019. He has remained in Hong Kong since then. He was arrested by Police on 27 April 2020, and referred to the Immigration Department on 29 April 2020. He is the subject of a Removal Order made on 14 May 2020, and a Deportation Order made on 25 August 2023. Those orders were made under sections 19 and 20 respectively of the Immigration Ordinance Cap 115 (“Ordinance”).

2.The Applicant has been in immigration detention since 15 July 2023, first under section 32(3A) of the Ordinance, and then section 29, and recently (since the making of the Deportation Order) under section 32(3). The latter permits the detention of a person subject to a deportation order, pending that person’s deportation.

3.The period of detention to date is 83 days, or approaching 3 months.

4.On 24 August 2023, the Applicant made an application for writ of habeas corpus, seeking his release from detention. I gave directions for an initial response, and to bring the matter to the hearing today. The initial response was filed on behalf of both the Director of Immigration and the Secretary for Security, who share between them the relevant powers exercised as regards the Applicant’s detention and non-release on recognizance.

5.At the hearing, the Applicant has appeared in person with the benefit of a Bengali/English interpreter. The Director/Secretary have been represented by Ms Kristy Tse, Government Counsel, who signed the initial response.

6.This is my Decision.

B.  Background

B.1  Entry to Hong Kong

7.The Applicant is a Bangladeshi national who, as stated above, claims to have entered Hong Kong illegally on 21 November 2019. On 27 April 2020, he was arrested by the Police for being an illegal immigrant.

B.2  Removal Order and Deportation Order

8.The Removal Order was made against him on 28 May 2020. It remains valid and extant.

9.On 14 September 2022, the Applicant was arrested by the Police. On 31 October 2022, the Applicant was sentenced to 15 months’ imprisonment for taking employment while being a person in respect of whom a removal order is in force. After serving that sentence, the Applicant was discharged into immigration custody and detained as from 15 July 2023.

10.The Deportation Order was made on 25 August 2023. It remains valid and extant.

B.3  Applicant’s Non-Refoulement Claim

11.The Applicant’s non-refoulement claim (“NRC”) was lodged on 1 May 2020. That NRC was rejected by the Director on all applicable grounds on 28 December 2020.

12.On 20 May 2021, the Applicant’s appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) was dismissed.

13.On 26 May 2021, the Applicant applied for leave to apply for judicial review against the Board’s decision. Via the DOJ, the Director has now requested priority in dealing with the application, in particular because the Applicant is held in detention. The hearing of the application for leave to apply for judicial review is fixed for 10 October 2023, i.e. next week.

14.It can reasonably be anticipated that the application would be determined within a few weeks thereafter.

B.4  Steps towards Removal/Deportation

15.The Applicant’s passport expired in January 2023. In February 2023, while still in prison, the Applicant refused to fill in an application form for a Bangladeshi passport or sign the consent for release of information to the local Consulate General of Bangladesh. Thereafter, the Director has been liaising with the Consulate, to seek assistance in issuing a replacement travel document for the Applicant’s re-entry to Bangladesh. The Applicant’s identity was confirmed by the Consulate in June 2023.

16.Since then, the Director has been actively following up with the Consulate. The Applicant’s refusal to cooperate has led to delay. He has refused to cooperate with any immigration removal arrangement, notwithstanding that he was informed that his lack of cooperation would inevitably lengthen his own detention. On 26 September 2023, the Director sought the Consulate’s assistance on possible alternative means to issue the Applicant travel document, regardless of his uncooperative attitude to completion of the re-entry formalities.

B.5  Reviews of Detention

17.The last review of detention was completed on 22 September 2023. The PAS for S considered there to be grounds for continued detention, and the Director considered that release of the Applicant on recognizance was not warranted, taking into account all relevant circumstances, which included that:

(1)  There is no sufficient reason to believe that the Applicant’s case cannot be finalised in the near future, in light of the scheduled hearing on 10 October 2023.

(2)  In light of his previous conviction when he was arrested whilst on recognizance, the Applicant poses, or is likely to pose, a threat or security risk to the community.

(3)  The Applicant has failed to comply with terms or conditions of recognizance.

(4)  The Applicant has directly or indirectly prevented or delayed his removal through his own actions or lack of action.

(5)  The Applicant has no fixed abode or close connection in Hong Kong.

(6)  The Applicant is likely to engage in unlawful employment or business if released from detention.

(7)  There are no other features weighing the factors in support of his continued detention.

C.  Applicable Principles

18.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.

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

D.  Applicant’s Submissions

20.The Applicant filed written submissions together with his application. Those submissions might be summarised as follows:

(1)  Perhaps for a period of time, the Applicant’s detention was reasonable. However, it has since become unreasonable.

(2)  He has ongoing proceedings to ensure his ability to remain in Hong Kong, which include the appellate stages.

(3)  There is no purpose to his prolonged detention, if he cannot be removed within a reasonable time.

(4)  He does not intend to go back in the near future, as he has ongoing legal proceedings with possible appeals, and deportation cannot be affected within a reasonable time.

(5)  The assessment of him as posing a threat or risk to the community is unfounded. He has only one criminal conviction, leading to a sentence which he has served. It was not an offence related to violence or very serious crime.

(6)  He has no record of absconding, and his residential address and telephone number have always been updated with the Immigration Department officers.

(7)  There is no clear explanation as to the changed view about him, when previously he had been on recognizance for a long period of time without problems.

(8)  He is held in conditions which treat him as a prisoner.

21.At the hearing, the Applicant made a short further submission in light of the coming hearing of his application for leave to apply for judicial review to challenge the decision of the Board. As stated, that hearing is fixed for 10 October 2023, but the Applicant said that if he remains in detention he would not be able to submit all the relevant documents for that hearing. Hence, he requested for ‘bail’, so that he could do that.

22.I take those various submissions into account, and give them such weight as seems fit in my analysis below.

E.  Whether Detention Has Become Unlawful

23.Throughout the present period of detention, there has been prima facie lawful authority to detain the Applicant under the various sections of the Ordinance – originally section 32(3A), later section 29(1) and (2), and now section 32(3).

24.Hence, the question arises whether the detention has become unreasonable in all the circumstances, and hence unlawful. The starting point is the period of detention – namely 83 days, or approaching 3 months – against which the various other factors must be weighed and balanced.

25.I can address the Hardial Singh principles as follows.

26.I accept that, throughout the period of detention, the Director has been intent on removing the Applicant at the earliest possible opportunity, and that has been the only purpose of detention. Therefore, HS1 is satisfied.

27.I also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal. This is evident from the Director’s proactivity and liaison with the Consulate in seeking the Applicant’s travel document. It is also evident from the request made to the Court to give priority to the Applicant’s application for leave to apply for judicial review. HS4 is satisfied.

28.The judicial review hearing is fixed for 10 October 2023, and it is reasonable to think that it will be determined within a few weeks thereafter. If the application for leave to apply for judicial review is refused by the Court of First Instance (“CFI”), then there will no longer be any legal impediment to the Applicant’s removal from Hong Kong. This is in line with the updated removal policy (see below).

29.Generally, a replacement travel document could be issued by the Consulate within around two weeks after fulfilling all the requirements set by the Consulate. Therefore, it is reasonable to expect that the travel document can be issued within reasonable foreseeable future period. With that travel document, the Applicant can be deported (assuming the conclusion of his judicial review proceedings) – and he would thereby be released from detention. In so far as the Applicant has refused to complete the pre-entry formalities, he has thereby chosen potentially to delay his deportation, and hence prolong his detention. I take that factor into account as having substantial weight.

30.As to any risk of re-offending, I accept the Applicant’s only conviction is of a matter with no violence. But there is some risk – though perhaps not the highest risk – that, if released, he would again engage in illegal employment. Were he to do so, and be convicted and sentenced, that would delay deportation. I note the previous offence was committed whilst the Applicant was on recognizance, evidencing that he is quite prepared to breach the terms of his release.

31.As to risk of absconding, I think the Applicant’s lack of cooperation and stated unwillingness to return identifies the real risk of absconding. Absconding would defeat the purpose of the detention, and the intended effect of the Removal Order and Deportation Order.

32.Overall, balancing the various factors to be weighed and balanced against the length of detention – here, the period of 83 days, nearly 3 months – I am nevertheless satisfied that the detention to date has continued to be reasonable in all the circumstances, and hence lawful. HS2 is satisfied.

33.I do not think any significant weight attaches to the Applicant’s suggestion that being held in detention would prevent him from submitting any necessary documents for the purposes of his judicial review application. Perhaps the suggestion is based upon a misunderstanding of the judicial review process, which does not amount to a rehearing of the NRC dealt with by the Board. Rather, an application for leave to apply for judicial review is concerned with examining the integrity of the decision-making process of the decision-maker – here the Board – and seeing if the Applicant has identified (with the benefit of the scrutiny of the Court) any reasonably arguable public law error on the part of the Board in reaching its decision. Therefore, the relevant documents for that application ought already to have been filed, and documents that might have been relevant to the NRC itself would or should already have been provided to the Board. At the hearing on 10 October 2023, the Applicant will be able to address any relevant submissions to the CFI.

34.If the Applicant’s application for leave to apply for judicial review is dismissed, that would end any legal impediment to his removal, even if there are subsequent appellate steps that the Applicant takes or wishes to take. That is because of the updated removal policy which took effect from 7 December 2022. In so far as the Applicant thinks that any appellate steps that he might take would continue to erect a legal impediment to his removal, he is mistaken. They would not.

35.On that basis, there is no need to be concerned about possible subsequent steps following a refusal of the application by the CFI, and it is not now able to be said that effecting the Applicant’s removal would not be possible within a reasonable period, such that the power to detain should not be exercised. HS3 is satisfied.

F.  Result

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

The applicant, acting in person

Ms Kristy Tse, Government Counsel, of the Department of Justice, for the respondents