Johnson Benjamin v. Director of Immigration and Another

CACV 229/2023, [2023] HKCA 1368

On Appeal From [2023] HKCFI 1664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 229 OF 2023

(ON APPEAL FROM HCAL 897 OF 2023)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Au JA (giving the reasons for judgment of the court):

A.  INTRODUCTION

1.This is the appeal against the order of Coleman J (“the Judge”) dated 23 June 2023 (“the Order”).  By way of the Order, the Judge after a hearing allowed the applicant’s application for writ of habeas corpus (“the habeas corpus application”), and ordered that he be released on recognizance on terms satisfactory to the Director of Immigration (“the Director”).  The Judge set out his reasons for making the Order in his written judgment (“the Written Judgment”) of the same date.

2.By way of the Notice of Appeal dated 19 July 2023, the Director and Secretary for Security (“the Secretary”), respectively the 1^st and 2^nd respondents in the habeas corpus application, appealed against the Order.

3.At the end of the hearing of the appeal on 29 November 2023, we allowed the appeal, set aside the Order and dismissed the habeas corpus application, with costs to the Director and Secretary.  We indicated that we would hand down our reasons for judgment in due course.  This is what we do now.

B.  RELEVANT BACKGROUND

4.The Judge has set out in detail in the Written Judgment[1] the background leading to the habeas corpus application.  This is largely undisputed and it is not necessary for us to repeat it here.  Suffice for us to highlight the following for present purposes.

5.The applicant is a Liberian national, who came to Hong Kong in February 2012 and was permitted to stay as a visitor for 5 days.  He however has overstayed thereafter.

6.He first applied for what is now called a non-refoulement claim (“NRC”) two days after he was arrested by the police in September 2012 for his overstay.  A removal order was issued against him in November 2013.

7.He married a Ms Chan (“the Wife”), who is a permanent Hong Kong resident, in March 2014.  The Wife gave birth to a son (“the Son”) on 16 June 2015.  Two days later, the applicant assaulted and raped the Wife’s friend in the couple’s home on the pretext of asking her to take something to the Wife who was still in the hospital.  After trial, he was convicted on one count of rape, one count of assault causing actual bodily harm and one count of indecent assault.  He was sentenced to 10 years of imprisonment.  In passing the sentence, the trial judge described the rape as a most brutal one.  The applicant started to serve his sentence in prison in October 2016.  His appeal on conviction and sentence was dismissed by the Court of Appeal in December 2017.

8.He completed his sentence and was released from prison on 15 February 2022.  Upon release, he was immediately detained by the Immigration Department for the purpose of deporting him.

9.At the same time, as summarized and noted by the Judge, it had taken more than 10 years for the applicant’s NRC to have reached the stage of being disposed of by the Torture Claims Appeal Board (“TCAB”), and much of the delay was self-induced by the applicant:

(1)  After lodging his NRC in September 2012, the applicant did not return the completed NRC form as required and the application was treated as withdrawn 3 years later in August 2015.

(2)  The applicant then requested to reopen his NRC only a month later in September 2015, which request was accepted by the Director.  The applicant was assigned with legal assistance under the Duty Lawyer Service (“DLS”).  But only a month later, he instructed the DLS to withdraw his NRC again in October 2015.

(3)  The applicant did not do anything in relation to his NRC during most of the time when he was in prison.

(4)  The applicant then yet again requested to reopen his NRC in December 2021, shortly before he was about to be released from prison.  By then, it was already 9 years since he first lodged his NRC in 2012.

(5)  After the reopening of the applicant’s NRC in December 2021, the Director considered and rejected it in May 2022.  In July 2022, the applicant appealed the Director’s rejection of his NRC to the TCAB out of time.  The TCAB accepted his out of time application in October 2022 and heard the appeal in December 2022.

(6)  After the hearing of that appeal, in between December 2022 and June 2023, the Director had written to the TCAB some 20  times asking for the progress of the determination of the appeal and urging the TCAB to treat the applicant’s appeal with priority.  The TCAB had replied twice, respectively in January and June 2023, stating that it would give priority to the applicant’s case. On 15 June 2023, the TCAB by way of a written decision dismissed the applicant’s appeal.

10.In the meantime, when the applicant was detained by the Director, between March 2022 and June 2023, the Director had also taken various and repeated active steps to arrange for the applicant to complete the re-entry formalities and have an interview with the Liberian Embassy in Hong Kong to renew his passport so that he would be ready for his removal when his NRC was properly disposed of.  However, all these efforts and steps were frustrated as the applicant repeatedly refused to cooperate with the Director and the Embassy to complete the re-entry formalities or to attend the various arranged interviews (whether physical or by phone).

11.On 8 June 2023, the applicant made the habeas corpus application.

12.On 23 June 2023, the Judge heard the application and granted the Order with the Written Judgment.  As stated by the Judge at the opening paragraph of the Written Judgment, by the time when the Judge heard the application, the applicant had been detained by the Director for 494 days, or about 1 year and 4 months.

C.  THE WRITTEN JUDGMENT

13.The Judge set out in detail the essentially undisputed factual background of the matter at [5] - [36] of the Written Judgment and the principles relevant to the consideration of a habeas corpus application at [37] - [38] of the Written Judgment.

14.He further concluded that the detention was all along made under the lawful authority of the Director pursuant to different sections of the Immigration Ordinance (Cap 115) (“the Ordinance”)[2], and the principal issue before him was thus whether the overall circumstances of the case had rendered continued detention unreasonable and hence unlawful under the well established Hardial Singh principles[3].

15.In relation to that issue, the Judge first found the following set of relevant facts or factors to be related to the question of the lawfulness of the continued detention:

(1)  First, he considered it to be important that the applicant had already been detained for, on any view, a long period (of 494 days), and it was pertinent to consider that this long period of immigration detention followed an already very lengthy period of imprisonment because of his conviction.  The Judge took the view that all the other relevant factors had to be considered against this context.[4]

(2)  Second, the Judge accepted that the Director had always been acting with reasonable diligence in seeking to remove the applicant throughout the entire period while the applicant was in detention, and that the Director did not detain the applicant for his past convictions as contended by the applicant[5].

(3)  Third, he agreed with the Director’s submissions and accepted that the applicant had a certain level of risks of reoffending and absconding if he was released from detention.  He further accepted that if the risk of reoffending was to eventuate, it would lead to extremely serious consequences, in particular in light of the nature of his previous conviction[6].

(4)  Fourth, he also agreed with the Director and accepted that it was the applicant who had caused most of the delays in the pursuit of the NRC and in the failure to obtain his replacement travel document. In these respects, he rejected the applicant’s various explanations as to why he did not pursue the NRC during the relevant periods[7].

(5)  Fifth, the Judge also accepted that it was not unreasonable at each point in time during the detention period for the Director to expect that within a reasonable time, (a) the TCAB would be able to dispose of the appeal, and (b) a replacement passport could be issued[8].

(6)  Sixth, the Judge held that, given that the applicant would apply for leave to apply for judicial review against the TCAB’s decision, it would probably take another 6 months for that leave application to be disposed of, which would make the total detention period to be about 1 year and 10 months by then[9].

16.The Judge then further found the following set of facts or factors which he regarded as favouring the release of the applicant on recognizance:

(1)  The applicant would be detained for a total of 1 year and 10  months if his detention were to continue, after taking into account the likely time involved in the disposal of his application for leave to apply for judicial review against the TCAB decision.  This, the Judge observed, would be a long period of detention on any view[10].

(2)  If the applicant was not released now, it would deprive him of the chance of establishing a closer relationship with the Son before he is removed.  The Judge noted that this was something that might be important for the Son as well.  In this respect, the Judge further accepted the applicant’s submission that the father’s sins should not be visited on the Son[11].

17.After weighing these two sets of factors together, noting that this was a difficult case to resolve, the Judge came to the conclusion that the detention of the applicant had reached a length and likely future continuation for a period which is not reasonable and lawful[12].  He therefore granted the Order and the applicant has since been released on recognizance.

D.  THIS APPEAL

D1.  Grounds of appeal

18.The Director has raised the following grounds of appeal[13].

19.First, the Judge misapplied the relevant principles set out in Harjang Singh v Secretary for Security[14]and the requirements under sections 32(4A) and 37ZK(2) of the Ordinance in the assessment of the lawfulness of the applicant’s detention by:

(1)  not affording the risks of absconding and re-offending “critical and paramount importance”;

(2)  wrongly having regard and / or giving improper weight to the applicant’s desire to establish a closer relationship with his son before the applicant’s removal;

(3)  failing to have regard to the applicant’s refusal to cooperate in the re-entry formalities; and

(4)  failing to have regard to the fact that the delay in determining the applicant’s NRC was of the applicant’s own making.

(collectively “Ground 1”).

20.Second, in any event, the conclusion reached by the Judge was not consistent with his finding of primary facts and / or was not sensibly open to him on the basis of those facts (“Ground 2”).

D2.  Discussion

21.The parties agree that the following principles sought to be summarized in Harjang Singh at [161] and [164(24)] are relevant to the determination of this appeal:

(1)  The appellate court will not interfere with the judge’s exercise of decision on whether a reasonable period of detention has been exceeded in the particular circumstances of a case unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts.  The leeway given to the first instance judge is not a result of the view that he has made a discretionary decision, but rather as a reflection that the balancing exercise can be difficult.  At the same time, it is important to note that it is not helpful to describe the test so as to suggest that such interference will only be in a rare case.

(2)  As the period of detention gets longer, the greater the degree of certainty and proximity of removal would be expected to be required in order to justify continued detention.

22.As will become clear below, we will first consider Ground 2.

23.In our view, the Judge’s decision that the applicant’s detention has exceeded a reasonable period in the circumstances of his case is one that (a) is not consistent with his finding of primary facts relating to the applicant’s unreasonable delay in the pursuit and the disposal of his NRC and / or (b) was not sensibly open to him on the basis of those facts.  We will explain why.

24.It is important to note that, in weighing the factors to determine whether the applicant’s detention had become unlawful, the Judge had emphasized the fact that the applicant had been detained for 1 year and 4 months, which he observed was a very long period.  Thus, he stated at [58] and [86] of the Written Judgment as follows:

“58. The starting point is that the Applicant has been detained up to today for a period of 494 days or about 1 year and 4 months. This is a very substantial period of time, and it is against that period that the other factors are to be weighed and balanced.

...

86. Overall, weighing the period of detention – 494 days, or 1 year and 4 months – against all the other factors, in particular the likely foreseeable further period before the intended application for leave to apply for judicial review can realistically be determined, and the family circumstances, I am of the view that the detention of the Applicant has now reached a length and likely future continuation for a period which is not reasonable and lawful.” (emphasis added)

25.On the other hand, as mentioned above, the Judge rightly found that the applicant by his own conducts had not pursued with any reasonable diligence his NRC for a long period of time.  By the time when he eventually seriously pursued it in December 2021 (just before he was to be released from prison), it was already 10 years since the applicant first lodged the NRC.  See: [15] - [21] and [62] - [74] of the Written Judgment.

26.In this respect, it is also important to note that the Judge further rightly observed and accepted at [70] and [71] of the Written Judgment that (a) the equivocation of the applicant had significantly contributed to the significant delay in the determination of his NRC, and (b) had the applicant chosen to pursue his case with some diligence, his NRC might have been resolved long before February 2022, when the immigration detention commenced.

27.Moreover, the Judge also rightly found that, during the relevant detention period, the applicant solely by his own uncooperation had prevented the replacement of his passport to facilitate a removal when and if he was ready to be removed after the resolution of his NRC.  See: [22] - [32] of the Written Judgment.

28.The Judge then further observed that, by being uncooperative with the Director and the Embassy in obtaining his replacement passport, the applicant “must have taken to have accepted that extra time, whilst he might be in detention, would be needed to procure a replacement passport if and when he should become ‘removable’”, and he questioned why any lawyer would advise such a course of conduct.  See [64] of the Written Judgment.

29.Once considered against these primary findings of facts and observations, in our view, it was not sensibly open to the Judge to conclude, after weighing all the relevant factors as he did, that the relevant immigration detention had become unreasonably long and thus unlawful:

(1)  It is plain that the relevant relatively lengthy period of immigration detention is substantially caused and necessitated by the applicant’s own unreasonable conduct and acts in significantly delaying the disposal of his NRC.  In other words, had he pursued his NRC reasonably diligently, as he ought to have, he would most likely have been ready to be removed expeditiously upon his release from prison.  As stated by the Judge at [31] of the Written Judgment, the Liberian Embassy would be able to issue the applicant the replacement passport in 2 weeks once all the formalities have been completed, and in fact, it was the applicant’s own case that he would be able to obtain the replacement passport even quicker.  In the premises, the applicant’s further frustration of the replacement of his passport has therefore further compounded the delaying effect caused by his unreasonable conduct in his pursuit of the NRC.

(2)  In the circumstances, the Judge’s emphasis on the relatively long period of the detention in the present case as the starting and in effect the tipping point to show that the detention had become unreasonably excessive simply cannot be right.

(3)  In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee’s own unreasonable behaviours or conducts should not be counted or regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are other circumstances to show otherwise.  This is so, as if otherwise, it would result in an absurd situation where the more unreasonably and uncooperatively a detainee behaves in seeking to frustrate or delay the procedures or process necessary to prepare for his removal, the more likely he is to be released.  That cannot be the intention of the Hardial Singh principles.

30.In this respect, we think it is also only prudent for this court to address the following submissions from the parties insofar as it may be considered to be relevant to Ground 2 and our above reasons.

31.In support of Ground 1(3), Ms Chow for the Director has contended that the Judge had wrongly considered the applicant’s refusal to cooperate in making the re-entry application with the Embassy as a factor pointing only to a risk of absconding.

32.In response to Ms Chow’s above submissions, Mr Parker for the applicant has submitted that the applicant’s own behaviour in frustrating the replacement passport should only be relevant to the consideration of whether a risk of absconding can be inferred.  This is so as there is nothing unreasonable by itself for a claimant to behave in such a manner, which is simply consistent with his intention that he does not want to be returned to his home country as underlined by his ongoing non-refoulement claim.

33.In support of his contention, Mr Parker seeks to rely on Lord Dyson JSC’s observations in R(Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 at [122] - [128] as follows:

“122 The most common examples of non-co-operation are (i) a refusal by a person who does not have a valid passport to co-operate with the obtaining of travel documents to enable him to return; and (ii) a person’s refusal to avail himself of one of the Home Office schemes by which he may leave the United Kingdom voluntarily. Most of the discussion in the cases has centred on (ii).

123 It is common ground that a refusal to return voluntarily is relevant to an assessment of what is a reasonable period of detention if a risk of absconding can properly be inferred from the refusal. But I would warn against the danger of drawing an inference of risk of absconding in every case. It is always necessary to have regard to the history and particular circumstances of the detained person. What is, however, in issue is whether a failure to return voluntarily can of itself justify a period of detention which would otherwise be unreasonable and therefore unlawful. In I’s case [2003] INLR 196, paras 50-54, I said in the Court of Appeal:

‘50. As regards the significance of the appellant’s refusal of voluntary repatriation, there appears to be agreement between Simon Brown LJ and Mummery LJ that this is a relevant circumstance, but Mummery LJ considers that it is decisively adverse to the appellant, whereas Simon Brown LJ considers that it is of relatively limited relevance on the facts of the present case. I too consider that it is a relevant circumstance, but in my judgment it is of little weight. [Counsel for the Secretary of State] submits that a refusal to leave voluntarily is relevant for two reasons. First, the detained person has control over the fact of his detention: if he decided to leave voluntarily, he would not be detained. Secondly, the refusal indicates that he would abscond if released from detention. It is this second feature which has weighed heavily with Mummery LJ.

‘51. I cannot accept that the first of [the Secretary of State’s] reasons is relevant. Of course, if the appellant were to leave voluntarily, he would cease to be detained. But in my judgment, the mere fact (without more) that a detained person refuses the offer of voluntary repatriation cannot make reasonable a period of detention which would otherwise be unreasonable. If [the Secretary of State] were right, the refusal of an offer of voluntary repatriation would justify as reasonable any period of detention, no matter how long, provided that the Secretary of State was doing his best to effect the deportation.

‘52. I turn to [the Secretary of State’s] second reason. I accept that if it is right to infer from the refusal of an offer of voluntary repatriation that a detained person is likely to abscond when released from detention, then the refusal of voluntary repatriation is relevant to the reasonableness of the duration of a detention. In that event, the refusal of voluntary repatriation is no more than evidence of a relevant circumstance namely the likelihood that the detained person will abscond if released.

‘53. But there are two important points to be made. First, the relevance of the likelihood of absconding, if proved, should not be overstated. Carried to its logical conclusion, it could become a trump card that carried the day for the Secretary of State in every case where such a risk was made out regardless of all other considerations, not least the length of the period of detention. That would be a wholly unacceptable outcome where human liberty is at stake.

‘54. Secondly, it is for the Secretary of State to satisfy the court that it is right to infer from the refusal by a detained person of an offer of voluntary repatriation that, if released, he will abscond. There will no doubt be many cases where the court will be persuaded to draw such an inference. I am not, however, satisfied that this is such a case. It is not at all surprising that this appellant has refused voluntary repatriation. He has not yet exhausted the asylum process, which, if successful, would permit him to remain in the United Kingdom. In these circumstances, why should one infer from the refusal of voluntary repatriation that, if released, he would abscond? In my judgment, the most that can be said is that there is a risk that if he is released the appellant will abscond. But that can be said of most cases. I do not consider that the fact that he has refused the offer of voluntary repatriation adds materially to the evidence that such risk is present in the instance case.’

124 Simon Brown LJ adopted a somewhat different approach at para 31. He said that, since in Hardial Singh [1984] 1 WLR 704 Woolf J had regarded it as a factor in the applicant’s favour that he was ‘quite prepared to go to India’, he could not see why the converse should not be relevant. The court should not ‘ignore entirely’ the applicant’s ability to end his detention by returning home voluntarily.

125 The point was considered again by the Court of Appeal in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804 Toulson LJ (with whom Longmore LJ agreed) said, at para 54:

‘I accept the submission on behalf of the Home Secretary that where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person’s detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made. The refusal of voluntary repatriation is important not only as evidence of the risk of absconding, but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once. In the latter case the loss of liberty involved in the individual’s continued detention is a product of his own making.’

126 Keene LJ said, at para 79:

‘I am not persuaded by Mr Giffn that the refusal by this detainee to return to Somalia voluntarily when it was possible to do so is some sort of trump card. On this I see the force of what was said by Dyson LJ in I’s case at para 52, namely that the main significance of such a refusal may often lie in the evidence it provides of a likelihood of the individual absconding if released. After all, if there is in a particular case no real risk of his absconding, how could detention be justified in order to achieve deportation, just because he has refused voluntary return? The Home Office in such a case, ex hypothesi, would be able to lay hands on him whenever it wished to put the deportation order into effect. Detention would not be necessary in order to fulfil the deportation order. Having said that, I do not regard such a refusal to return as wholly irrelevant in its own right or as having a relevance solely in terms of the risk of absconding. It is relevant that the individual could avoid detention by his voluntary act. But I do not accept that such a refusal is of the fundamental importance contended for by the Secretary of State.’

127 It is necessary to distinguish between cases where return to the country of origin is possible and those where it is not. Where return is not possible for reasons which are extraneous to the person detained, the fact that he is not willing to return voluntarily cannot be held against him since his refusal has no causal effect. But what if return would be possible, but the detained person is not willing to go? Here it is necessary to consider whether the detained person has issued proceedings challenging his deportation. If he has done so, then it is entirely reasonable that he should remain in the United Kingdom pending the determination of those proceedings (unless the proceedings are an abuse). In those circumstances his refusal to accept an offer of voluntary return is irrelevant. The purpose of voluntary return is not to encourage foreign nationals to return to their countries of origin where, if their legal challenges succeed, it is likely to have been demonstrated that they would face a risk of persecution within the meaning of the Convention and Protocol relating to the Status of Refugees (1951) (Cmd 9171) and (1967) (Cmnd 3906) or treatment contrary to article 3 of the ECHR. Rather, it is to facilitate removal where that is justified because the FNPs have not proved that they would face the relevant risk on return. In accepting voluntary return, the individual forfeits all legal rights to remain in the United Kingdom. He should not be penalised for seeking to vindicate his ECHR or Refugee Convention rights and be faced with the choice of abandoning those rights or facing a longer detention than he would face if he had not been offered voluntary return.

128 What about those who have no outstanding legal challenges? Here, the fact that the detained person has refused voluntary return should not be regarded as a ‘trump card’ which enables the Secretary of State to continue to detain until deportation can be effected, whenever that may be. That is because otherwise, as I said at para 51 of my judgment in I’s case, ‘the refusal of an offer of voluntary repatriation would justify as reasonable any period of detention, no matter how long, provided that the Secretary of State was doing his best to effect the deportation’. If the refusal of voluntary return has any relevance in such cases even if a risk of absconding cannot be inferred from the refusal, it must be limited. That was the view of Simon Brown LJ in I’s case [2003] INLR 196 and Keene LJ in A’s case The Times, 5 September 2007 and I agree with them.” (emphasis added)

34.In our view, reading the Written Judgment as a whole and fairly, we do not think the Judge had limited his consideration of the applicant’s refusal to cooperate in completing the formalities to obtain his replacement passport to only the question of risk of absconding.  He had taken that conduct into account generally in the overall assessment as to whether the detention period had become unreasonable.  See: [63], [64], [67], [80], [85] and [86] of the Written Judgment.

35.Insofar as R(Lumba) is concerned, we also do not think it assists the applicant in this appeal and in relation to our reasons set out at [23] - [29] above.

36.First, Lord Dyson’s said observations are not related to a situation (as in the present) where (a) an applicant has by himself delayed the pursuit of the relevant non-refoulement claim, and / or (b) if not because of an applicant’s own unreasonable delay, the relevant non-refoulement claim ought to have been disposed of before the subject detention has commenced.  They therefore do not affect our above reasons.

37.Second and in any event, with the greatest respect, we have reservation as to whether the observations in R(Lumba) are necessarily correct.  In our view, even if there is an ongoing non-refoulement claim, there is no reason in principle why it is not reasonable to expect an applicant to cooperate with the relevant authorities to obtain the necessary travel document to facilitate his removal once the non-refoulement claim is disposed of. In other words, we do not see in principle why such uncooperative behaviour on the part of an applicant should only be limited to the consideration of the risks of absconding but not also to the wider question of whether any additional period of detention resulting from such behaviour shall be considered as reasonable or not.

38.In the premises, for all the above reasons, it is plain to us that the Judge’s decision that a reasonable period of detention has been exceeded in the particular circumstances of the case is inconsistent with his findings of primary fact and / or was one not sensibly open to him on the basis of those facts.

39.For the same reasons as explained above, taking all the factors as the Judge had found and summarized above, we are of the clear view that the applicant’s period of detention has not become unreasonable and unlawful.  We therefore allowed the appeal under Ground 2, and the Order should be set aside and the habeas corpus application should be dismissed.

40.In the premises, it is unnecessary for us to consider the arguments advanced by the parties under Grounds 1(1) and (2), and in relation to sections 32(4A) and 37ZK(2) of the Ordinance[15].

41.Finally, we also wish to make the following two observations.

42.First, the Judge had stated and observed at [58] - [60] of the Written Judgment as follows:

“58. The starting point is that the Applicant has been detained up to today for a period of 494 days or about 1 year and 4 months. This is a very substantial period of time, and it is against that period that the other factors are to be weighed and balanced.

59. I also think it correct to take into account that that substantial period of 494 days immediately followed the even lengthier period of his imprisonment following criminal conviction. That is not to treat the immigration detention period as being longer than in fact it has been, or otherwise to suggest that the imprisonment was somehow inappropriate or unjustified. But that is merely to recognise that the effect of the immigration detention on the Applicant might be greater in certain aspects because it has immediately followed another lengthy period of imprisonment.

60. Throughout the entire current detention period, I have no doubt that the detention power has been used either to facilitate removal or pending the final determination of the Applicant’s NRC. There is no basis for the Applicant’s suggestion that the Director has been detaining him for the ulterior purpose of making him abandon his NRC. Whilst the Director has taken into consideration his criminal record in refusing to grant recognizance, it does not mean that he was detained for his past convictions. HS1 is satisfied.” (emphasis added)

43.It therefore appears that the Judge had taken into account the applicant’s lengthy criminal conviction imprisonment as a context to assess the adverse effect of the immigration detention on the applicant, which the Judge regarded to be relevant to the question whether the immigration detention period has become unreasonable.  This, in our view, is wrong in principle.  The question before the court in a habeas corpus application is about whether the immigration detention period has exceeded a reasonable one and become unlawful. The purpose of that detention is for removing the applicant and has nothing to do with the criminal conviction.  Hence, the previous imprisonment following criminal conviction is simply irrelevant to the reasonableness of the immigration detention.  As the Judge himself had rightly observed later at [60] of the Written Judgment, the applicant was not detained by the Director for his past convictions.

44.Second, although both parties agree that the principles as summarized in Harjang Singh at [161] and [164(24)] are applicable (see [21(1)] above), we must emphasize that the decision of whether a detention is lawful or unlawful by reason of its length is not a discretionary decision or a factual determination.  There should only be one correct answer.  As such, the fact that it may be a difficult judgment for the first instance judge to make in a particular case should not in principle make the appellate court more reluctant to interfere, although the court for that reasons may tend to afford a decent degree of respect or deference to the judge’s weighing exercise of the relevant factors for his judgment before departing from his or her conclusion.

E.  CONCLUSION

45.For the above reasons, we allowed the appeal, set aside the Order and dismissed the habeas corpus application.  Costs of the appeal to the Director and Secretary to be assessed summarily.

46.The Director and Secretary have since lodged their Statement of Costs seeking a total sum of $316,232 (including counsel’s fee of $242,900).  By way of his written objection dated 13 December 2023, the applicant objected to the amount of costs sought on the basis that (a) some items of work carried out by the two fee earners were duplicated and (b) there is no breakdown of counsel’s fees.

47.In light of the nature and complexity of the issues raised in this appeal, we find the costs sought by the Director and Secretary to be reasonable, but will round it down to $300,000.  We therefore further order that the applicant shall pay the Director and Secretary costs of this appeal, assessed to be $300,000.

Ms Grace Chow and Mr Alvin Hor, Government Counsel, instructed by Department of Justice, for the 1^st and 2^nd respondent

Mr Timothy Parker, instructed by Daly & Associates, for the applicant