Gauchan Subash v. Director of Immigration and Another

HCAL 1745/2023

[2023] HKCFI 2761

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1745 OF 2023

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BETWEEN

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J U D G M E N T

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A. Application

1.By an ex parte application filed on 28 September 2023, the Applicant applies for a writ of habeas corpus, pursuant to Order 54 rule 1 of the Rules of the High Court (Cap 4A). The Applicant thereby seeks release from the custody of the Immigration Department.

B. Background of Applicant

2.The Applicant is a Nepali national born in 1988. He entered Hong Kong on the strength of his passport on 9 June 2015 and was permitted to remain as a visitor until 16 June 2015. He surrendered himself to the Immigration Department on 23 June 2015. He was released on recognizance on 7 August 2015.

3.On 19 April 2016, a removal order was issued against the Applicant (the “Removal Order”) which remains valid.

4.On 22 May 2023, the Applicant’s recognizance was ceased. The Applicant has since then been detained under section 32(3A) of the Immigration Ordinance (Cap.115) (the “Ordinance”) pending his removal from Hong Kong.

5.The Applicant’s passport is valid and will expire in 4 April 2025.

6.At the time of the hearing, the Applicant has been detained for 156 days.

C. NRC related proceedings

7.The Applicant raised a non-refoulement claim (the “NRC”) on 18 September 2015, which was based on alleged fear of being harmed or killed by his father’s creditor. The NRC was rejected by the Director of Immigration (the “Director”) on 18 April 2018. The Applicant lodged an appeal to the Torture Claims Appeal Board (the “TCAB”) against the refusal of the NRC, which was dismissed on 3 December 2018 (the “TCAB Decision”).

8.The Applicant’s application to the Court of First Instance for leave to apply for judicial review against the TCAB Decision was dismissed by the Form CALL-1 dated 6 August 2020 (the “JR Decision”) in HCAL 2878/2018.

9.The Applicant appealed against the JR Decision under CACV 471/2020, which was dismissed on 29 March 2021.

10.The Applicant then sought leave to appeal to the Court of Final Appeal on 29 July 2022, which was dismissed on 13 April 2023.

11.The Applicant subsequently sought leave from the Court of Final Appeal under FAMV 151/2023, the determination of which is pending.

12.According to the updated removal policy of the Immigration Department since 7 December 2022, once a NRC claimant's subsequent legal proceedings have reached the stage of having been rejected by the Court of First Instance, the existence of further proceedings will not normally be considered by the authority as an impediment to removal.

13.There is thus no legal impediment to the Applicant’s removal.

D. Criminal Record & Sentencing Record

14.The Applicant’s criminal and sentencing record is as follows:

Date of Conviction	Offence	Period of Sentence
7 October 2022	Criminal Damage	HK$1,000 fine and HK$10,000 compensation

E. Steps towards Removal

15.The Applicant originally indicated on 25 May 2023 that he was willing to return to Nepal but he changed his mind on 31 May 2023 as he claimed that his life would be in danger if he returns.

16.Despite repeated offers through his solicitors of guarantors, the Director considered that the release of the Applicant on recognizance was not warranted.

17.Despite the Applicant’s indication that he was unwilling to be removed, a flight ticket was procured for his removal back to Nepal on 28 July 2023. This first operation was called off due to security risks caused by the Applicant’s unwillingness to return.

18.Another flight ticket was procured for the Applicant’s removal on 10 October 2023. However, due to the present application, this operation was aborted.

19.A third attempt to remove the Applicant is now scheduled for 27 October 2023 and a flight ticket has been arranged.

F. Applicable Principles

20.In the Court of Appeal’s Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security and Another [2022] HKCA 781, the principles to be applied in an application for habeas corpus were set out in summary in §164.

21.In considering the present application, I have adopted the said principles and have borne in mind that (1) the burden is on the Director to justify the continued lawfulness of the detention, and (2) the weight to be given to individual factors in the balancing exercise may, depending on the circumstances of the particular case, vary considerably as the period of detention lengthens.

G. The Applicant’s Submissions

22.The Applicant has set out his grounds for application in his affirmation dated 28 September 2023. In summary, they are as follows:

(1) He has a pending application in the Court of Final Appeal.

(2) His life would be in danger if he goes back to Nepal.

(3) He had never gone to prison for any crime committed.

(4) He has never jumped bail.

(5) He has family members who are permanent residents in Hong Kong who can stand as surety.

(6) He has medical conditions, namely, a right leg sprain sustained from a fall which is in need of surgery.

23.At the oral hearing, the Applicant made the following oral submissions in addition to the written submissions:

(1) He wished to stay in Hong Kong with his family members who could take care of his medical conditions.

(2) His criminal conviction arose out of an accident, which he apologised for.

24.I shall bear these points in mind as appropriate in my analysis below.

H. Lawful Authority for Detention?

25.The Removal Order was issued on 19 April 2016 and remains extant. The Applicant has been detained from 22 May 2023 to 24 October 2023 (156 days) under section 32(3A) of the Ordinance which permits the detention of a person against whom a removal order is in force pending his deportation from Hong Kong.

26.Thus, there was and remains clear prima facie lawful authority for the detention.

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

I. Whether Detention has become unlawful

28.The assessment of whether an originally lawful detention has ceased to be lawful due to its continuation for an unreasonable period will be made in line with the “Hardial Singh principles”:

(1) The Secretary/Director must intend to deport the person and can only use the power to detain for that purpose (“HS1”);

(2) The deportee may only be detained for a period that is reasonable in all the circumstances (“HS2”);

(3) If, before the expiry of the reasonable period, it becomes apparent that the Secretary/Director will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention (“HS3”);

(4) The Secretary/Director should act with reasonable diligence and expedition to effect removal (“HS4”).

29.The burden of demonstrating the detention (and the continuation of it) is lawful rests on the respondent to the application for habeas corpus.

HS1

30.I am satisfied that the Director has detained the Applicant for the sole purpose of removal or deportation throughout the detention period. HS1 is satisfied.

HS2 & HS3

31.The starting point is the length of the detention – about 156 days – against which all the other factors must be weighed and balanced.

32.For the following reasons, I am satisfied that HS2 and HS3 are satisfied:

(1) There is no dispute that the only reason why the Applicant has not been released and removed to Nepal is due to his refusal to co-operate.

(2) I agree with Mr Cheng that the length of the current detention was solely attributable to the Applicant’s self-inflicted hindrance and thus it lies ill in the mouth of the Applicant to complain about the length of the detention. He had consciously and deliberately refused to co-operate, which led to the impossibility of earlier deportation. The Applicant should not be allowed to rely on a self-imposed obstacle in arguing that the detention has become unreasonably long. This is a significant factor that has been taken into account.

(3) I do not find that the risk of re-offending is high with the last criminal record to be in October 2022. The sentence was non-custodial, indicating the relative level of seriousness of the offence committed.

(4) Although the Applicant has shown local connection and have offered to provide guarantors, given the Applicant’s clear attitude that he is unwilling to be repatriated and the fact that there is no further impediment to removal, the risk of absconding is real.

(5) There is no evidence showing the medical care provided to the Applicant is inadequate.

(6) Release and removal is imminent with a flight arranged on 27 October 2023, 3 days after the hearing.

(7) Overall, weighing the period of detention – around 156 days – against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

33.I am satisfied that HS4 is satisfied as the Director had pursued the Applicant’s deportation diligently, as shown in paragraphs 17-19 above.

34.Based on the above, I am of the view that the period of detention to date has remained lawful at all times and will remain lawful for the foreseeable future.

J. Result

35.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 Jinson Cheng, Government Counsel, of the Department of Justice, for the 1^st and 2^nd respondents