Read the full judgment text of CACV 229/2023 on BabelCite. This Court of Appeal judgment was delivered on 22 December 2023 before Barma JA, Au JA, Chow JA.
Habeas corpus – immigration detention – whether detention has become unreasonable – Hardial Singh principles – relevance of detainee's own conduct in delaying removal process – non-refoulement claim (NRC) – Torture Claims Appeal Board (TCAB) – cooperation with travel document formalities – appellate review of first-instance judge's assessment of reasonableness – Immigration Ordinance (Cap 115) ss 32(4A) and 37ZK(2). The applicant, a Liberian national who had overstayed in Hong Kong since 2012, had a long history of self-induced delay in pursuing his NRC: the claim was lodged in September 2012, treated as withdrawn in August 2015, reopened and withdrawn again in October 2015, and not seriously pursued again until December 2021. In March 2014 he married a Hong Kong permanent resident and a son was born in June 2015. Two days later, the applicant committed a brutal rape and assault of his wife's friend for which he was convicted and sentenced to 10 years' imprisonment, upheld on appeal. He was released from prison on 15 February 2022 and immediately detained by the Immigration Department for the purpose of deportation. His NRC was finally rejected by the Director in May 2022 and the TCAB dismissed his appeal on 15 June 2023. During his immigration detention, the Director took repeated active steps to arrange re-entry formalities with the Liberian Embassy, but the applicant refused to cooperate. The applicant brought a habeas corpus application in June 2023 after 494 days of detention, and Coleman J granted the application. The Director and Secretary for Security appealed. Held, allowing the appeal and dismissing the habeas corpus application: (1) The first-instance judge's conclusion that the detention had become unreasonably long was inconsistent with his own findings of primary fact and not sensibly open to him. The 494-day detention period was substantially caused and necessitated by the applicant's own unreasonable conduct in delaying his NRC and in refusing to cooperate with the passport replacement process; the Liberian Embassy could issue a replacement passport within 2 weeks had the applicant cooperated. (2) As a matter of principle, any period of detention caused, necessitated or prolonged by a detainee's own unreasonable behaviour should not be counted as an unreasonable period for the purpose of determining whether an originally lawful detention has become unlawful, since the contrary position would produce the absurd result that the more uncooperatively a detainee behaves, the more likely he is to be released. (3) The observations of Lord Dyson JSC in R(Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 on the limited relevance of non-cooperation with travel document formalities did not assist the applicant, because they were not made in the context of a detainee who had himself delayed the non-refoulement claim; the Court of Appeal further expressed reservations about Lumba and held that non-cooperation is relevant not only to risk of absconding but also to the broader assessment of reasonableness of detention. (4) The applicant's prior 10-year criminal imprisonment was irrelevant to the reasonableness of the subsequent immigration detention, which was solely for the purpose of removal. (5) The appellate court emphasised that the assessment of whether detention has become unlawful by reason of its length is not a discretionary decision and admits of only one correct answer, although a degree of deference is afforded to the first-instance judge's weighing exercise. The applicant was ordered to pay the Director and Secretary costs of the appeal, assessed at HK$300,000 (rounded down from HK$316,232 claimed).
Legal issues: Whether the judge's conclusion that detention had become unreasonable was consistent with his findings of primary fact · Relevance of applicant's refusal to cooperate in obtaining replacement travel document · Relevance of prior criminal imprisonment to assessment of reasonableness of immigration detention
Outcome: Appeal allowed; Order of Coleman J set aside; habeas corpus application dismissed.
Cited by 58 cases · Cites 2 cases