Gilbert, Muasa Nthale Alias Nthale Gilbert Muasa v. Torture Claims Appeal Board / Non-refoulement Petition Office
Read the full judgment text of HCAL 1506/2023 on BabelCite. This High Court CFI judgment was delivered on 5 October 2023.
1. By application filed on 24 August 2023, the Applicant seeks a writ of habeas corpus to obtain his release from detention. He has incorrectly named the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) as the respondent. This is incorrect as the Applicant is not detained by the Board, and I have therefore excused the Board’s attendance.
Cited by 2 cases · Cites 2 cases
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HCAL 1506/2023 [2023] HKCFI 2519 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1506 OF 2023 ________________________ BETWEEN
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________________________ D E C I S I O N ________________________ A. Introduction 1.By application filed on 24 August 2023, the Applicant seeks a writ of habeas corpus to obtain his release from detention. He has incorrectly named the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) as the respondent. This is incorrect as the Applicant is not detained by the Board, and I have therefore excused the Board’s attendance. 2.In fact, the Applicant is held in administrative detention under the authority of the Secretary for Security/PAS for S, rather than the Director of Immigration, who the Applicant named as interested party. The Director does, however, have involvement in the decision whether or not to release the Applicant on recognizance. 3.I gave directions for an initial response to the application, and to bring the matter of the hearing today. As at today’s date, the Applicant has been held in detention for 85 days, or around 3 months. 4.At the hearing, the Director/Secretary have been represented by Mr Felix Lee, acting Senior Government Counsel, who signed the initial response. The Applicant has appeared in person, with the benefit of a Swahili/English interpreter. However, as notified to the Court by a Memorandum of Application for Legal Aid dated 4 October 2023 (i.e. yesterday), the Applicant has made an application for legal aid. Upon that application, the usual 42-day stay of proceedings was triggered. However, also on 4 October 2023, I lifted the stay for the purposes of at least commencing today’s hearing, at which time I said I would consider the position further. Having done so, I lifted the legal aid stay completely and the hearing went ahead. 5.The reasons for lifting the stay are explained in my separate Reasons for Decision (Lifting Legal Aid Stay), [2023] HKCFI 2576. 6.Having considered the substantive habeas corpus application, this is my Decision. B. Background B.1 Applicant’s Immigration and Family Status 7.The Applicant is a Kenyan male, born in 1992. 8.He arrived in Hong Kong on 8 June 2014, and was permitted to remain as a visitor until 6 September 2014. However, he did not depart and has overstayed in Hong Kong since 7 September 2014. 9.On 29 October 2014, a Removal Order was issued against the Applicant, under section 19 of the Immigration Ordinance Cap 115 (“Ordinance”). 10.Subsequently, on 19 September 2017, a Deportation Order was made against the Applicant, under section 20 of the Ordinance. 11.The Director attempted to remove the Applicant from Hong Kong, on a repatriation flight scheduled for 14 October 2017. The attempt was aborted when the Applicant threatened violent resistance to removal, and claimed that he would apply for leave to apply for judicial review against the decision of the Board – which (see below) had dismissed his appeal/petition against the Director’s refusal decisions on his non-refoulement claim (“NRC”). 12.On 3 August 2020, the Applicant married his wife, who is a Hong Kong permanent resident (“HKPR”). They have a son born on 4 September 2019, who is also a HKPR. B.2 Applicant’s NRC 13.The Applicant had raised a NRC on 26 November 2014. By two decisions dated 27 May 2016 and 24 April 2017, the Director rejected the NRC on all applicable grounds. 14.On 19 May 2017, as stated, the Board dismissed the Applicant’s appeal/petition. 15.On 9 June 2017, the Applicant made a ‘subsequent claim’ request. On 20 June 2017, the Director rejected that request. 16.On 7 August 2020, the Court of First Instance (“CFI”) refused the Applicant’s application for leave to apply for judicial review, which he had made (out of time) on 1 December 2017 – as presaged during the aborted removal attempt a few weeks beforehand. The CFI’s decision made clear that the Applicant had not provided any grounds for judicial review, nor offered any explanation for his delay. The application plainly smacks of one with no merit, but simply intended to thwart the deportation. 17.It seemed that no further court applications were made by the Applicant relating to his NRC (though in his written submissions, he suggested he had an appeal summons outstanding). However, in any event, the CFI’s decision means that there is no legal impediment to the Applicant’s removal, following the updated removal policy which took effect from 7 December 2022. B.3 Criminal Record and Absconding Record 18.Mr Lee describes the Applicant as a recidivist, citing the summary of the Applicant’s criminal record as follows:
19.It was upon discharge from prison after serving that last sentence that the Applicant was detained, so commencing the present period of detention. 20.The Applicant failed to report recognizance on 6 October 2020, and absconded for a period of more than two years. 21.Whilst he was arrested by the Police on 19 September 2022 for the suspected offence of ‘possession of a dangerous drug’ and required to report bail on 22 October 2022, he jumped bail. It was only on 19 December 2022 that he was re-arrested by the Police for the suspected offence of ‘taking conveyance without authority’, which ended the period of absconding. B.4 Efforts at Removal 22.Throughout the period of detention, the Director has conducted interviews with the Applicant on a regular basis, during which the Applicant has consistently expressed unwillingness to return to Kenya and has refused to cooperate on re-entry formalities. He has done so, notwithstanding that it has been explained to him repeatedly that the refusal to cooperate would only impede his inevitable removal, and thereby lengthen his detention. 23.As a result of the Applicant’s refusal to cooperate, the Director has liaised with the local Consulate General of the Republic of Kenya, to request a replacement travel document to be issued to the Applicant, notwithstanding his uncooperative approach. 24.On 14 September 2023, the Consulate requested further documents, including an air ticket for the removal of the Applicant from Hong Kong to Kenya, for the issuance of an emergency travel document for the Applicant. On that day, the Director arranged a repatriation flight for the Applicant scheduled for 9 October 2023. On 19 September 2023, the Consulate issued a Certificate for Emergency Travel, thereby enabling the Applicant’s repatriation to Kenya on the flight booked for 9 October 2023. B.5 Present Detention 25.The Applicant was previously detained from 21 December 2022 until 18 May 2023 – a period of around 5 months. He was then remanded in custody on the charge of ‘possession of a dangerous drug’, for which he was subsequently convicted and sentenced on 13 June 2023. 26.As already stated, it was upon discharge from prison after serving that sentence that the present period of detention began. But, I recognise and take into account that the present period followed straight on from the previous periods of detention and imprisonment, set out above. 27.During the present period, the Applicant’s detention has been subject to review. At the last review on 26 September 2023, release on recognizance was not recommended. The assessment – as shown in the relevant minute – included consideration of the following matters:
28.The assessment was considered up the chain of command to the PIO(RAL), who ultimately endorsed the decision not to release on recognizance. The officers’ notes show careful consideration of the matters to be weighed and balanced. C. Applicable Principles 29.Those principles applicable on an application for writ of habeas corpus in cases with 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. 30.Though it was obviously not intended to be exhaustive, that summary of applicable principles is as follows:
31.I apply those principles as seem to me to be appropriate to the particular circumstances of the present application. D. Applicant’s Submissions 32.The Applicant filed written submissions together with his application. In addition to some fairly standard submissions relating to the Hardial Singh principles, and some other case authorities, his submissions might be summarised as follows:
33.At the hearing, the Applicant made further submissions, by handing up a letter, handwritten by him in English. Those submissions can be summarised as follows:
34.Save for the matters which were relevant to his NRC and whether he should or should not be deported (namely such as his assertion that he cannot go back to Kenya because he says he is at risk of harm there), 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 35.Throughout the present period of detention, there has been prima facie lawful authority to detain the Applicant under section 32(3) of the Ordinance. The Applicant is subject to a valid and extant Deportation Order. 36.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 85 days, or around 3 months – against which the various other factors must be weighed and balanced. 37.For the avoidance of doubt, I accept that the present period of detention began on 13 July 2023, following the Applicant’s discharge from prison. But I also take into account that the present period can be viewed in the context of the immediately preceding periods of administration detention and imprisonment which began on 21 December 2022. When considering that context, it seems to me to be relevant to recognise that the administration detention was the obvious result of the previous period of almost 2 years’ absconding, which ended only upon the Applicant’s arrest for the offence which then led to a period on remand and the period of imprisonment. 38.I can address the Hardial Singh principles as follows. 39.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. 40.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, which has now been obtained to facilitate the repatriation flight scheduled for 9 October 2023. HS4 is satisfied. 41.The only obstruction to removal was the need to obtain a replacement travel document for the Applicant. Therefore, in so far as the Applicant has refused to cooperate with the pre-entry formalities, he has thereby chosen to delay his inevitable deportation, and hence prolong his detention. The Applicant cannot complain about the length of detention when he has by his own conduct materially added to it. I take that factor into account as having substantial weight. 42.As to the risk of re-offending, I accept and agree with the analysis of the Director/Secretary. The Applicant is a repeated offender, and the offences committed by him are serious and have been of a violent nature. The previous offences were committed whilst the Applicant was on recognizance, evidencing that he is quite prepared to breach the terms of his release. The risk of re-offending is high, and the potential impact from any re-offending would likely be substantially harmful to the Hong Kong community. 43.As to risk of absconding, the Applicant’s lengthy previous period of absconding (which followed a previous repatriation attempt, and which ended only upon being re-arrested for a further criminal offence), together with his lack of cooperation and stated unwillingness to return, identify a real and substantial risk. Absconding would defeat the purpose of the detention, and the intended effect of the Removal Order and Deportation Order. For the avoidance of doubt, I place no great weight on the recent legal aid applications in the context of the assessment of risk of absconding. 44.But, as is trite, the risks of re-offending and absconding are of critical and paramount importance in the assessment of the lawfulness of the period of detention. I give them significant weight in this case. 45.I acknowledge the Applicant’s family circumstances, and the likely stress caused to the family members from the Applicant’s detention. However, the simple fact is that the Applicant is liable to be deported under the valid and extant Deportation Order. Hence, it is only possible for him to reunite with his family outside Hong Kong (though I also acknowledge the point made by the Applicant about the financial constraints to reuniting outside Hong Kong). The family circumstances are of rather little weight in light of the other factors, and the proximity of the removal date. 46.It can also be noted that: (1) the marriage was long after the making of the Deportation Order, and must have been entered into by the Applicant and his wife with eyes wide open to that fact; (2) only a few months after the marriage, the Applicant absconded for a lengthy period of time, which was ended only by his re-arrest, demonstrating that the marriage has not prevented the Applicant breaching the terms of his release and committing further crime; and (3) there is a tension between the Applicant’s claim that he wishes to take care of his family and his unlawful conduct which has led to imprisonment and separation from them. 47.Mr Lee has also pointed out that the Applicant has said that he was unable to contact his wife on 14 August 2023, and Immigration Department officers were unable to contact her on 21 September 2023, so that there is some doubt as to whether she agrees to be the Applicant’s guarantor. (Though I placed no particular weight on the fact, I do not think the wife was present in court today, nor was the Court provided with any written letter of support from the wife.) 48.Overall, balancing the various factors to be weighed and balanced against the length of detention – here, the period of 85 days, nearly 3 months – I am satisfied that the detention to date has continued to be reasonable in all the circumstances, and hence lawful. HS2 is satisfied. 49.The Applicant’s deportation giving effect to the Deportation Order is scheduled to happen on 9 October 2023, namely a few days from now. There is a clear timescale for his removal within a reasonable period, and there is no reason that the power to detain should not continue to be exercised until then. Detention will remain reasonable in all the circumstances, and hence lawful. HS3 is satisfied. F. Result 50.The Applicant’s application for writ of habeas corpus is dismissed, with no order as to costs.
The applicant, acting in person The respondent was excused from court attendance Mr Felix Lee, Senior Government Counsel (Ag.), of the Department of Justice, for the interested parties |
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