Joshi Mulame Karam Singh v. Director of Immigration and Another

HCAL 1311/2024

[2024] HKCFI 2716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1311 OF 2024

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DECISION

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1.   Introduction

1.1The Applicant is subject to a Removal Order and a Deportation Order respectively made on 12 July 2016 and 1 March 2024.  He has been held in immigration detention since 13 December 2023 pursuant to, in respect divers periods, Sections 32(3A), 29(1), 29(2) and 32(3) of the Immigration Ordinance Cap 115 (“Ordinance”). As at the first hearing before me, he has been detained for 300 days.  The first hearing was adjourned because the Applicant was hospitalized.  At the adjourned hearing, he has been detained for 317 days.

1.2This is my decision of the Applicant’s application made on 8 August 2024 for a writ of habeas corpus.  At the adjourned hearing, the Applicant appeared in person, with the benefit of an interpreter.  Ms Angie Liu (with Ms Lilian Chiu) appeared for the Director of Immigration (“Director”) and the Secretary for Security (“Secretary”).

2.  Background

2.1The Applicant is an Indian male born in 1990.

2.2On 28 January 2016, the Applicant presented for arrival clearance at Lok Ma Chau Control Point.  He was refused permission to land in Hong Kong and was removed from Hong Kong on the same day.

2.3On 5 February 2016, the Applicant surrendered to the Immigration Department for illegal remaining.  He claimed that he had entered Hong Kong illegally from the Mainland on 4 February 2016.  He was in possession of his Indian passport with validity until 5 September 2021. On 15 March 2016, he was released on recognizance.

2.4Whilst released on recognizance, the Applicant was convicted of the following offences:

(1)  On 3 November 2017, he was convicted of “Using an identity card relating to another person and “Prohibition of taking employment and establishing business” and was sentenced (in aggregate) to 22 months and 15 days’ imprisonment; and

(2)  On 27 June 2023, he was convicted of “Taking employment while being a person in respect of whom a removal order is in force” and sentenced to 18 months’ imprisonment.

2.5The present detention commenced following the Applicant’s release from his last imprisonment.

2.6The Applicant has no family ties in Hong Kong.

3.  Non-refoulement claim (“NRC”) and related proceedings

3.1The Applicant’s NRC was rejected by the Director on 26 February 2018. Subsequently, his appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”) was dismissed on 19 December 2018 (“TCAB Decision”).

3.2The Applicant’s application to apply for leave to apply for judicial review against the TCAB Decision (HCAL 2/2019) was dismissed by DHCJ KW Lung on 26 January 2023[1] (“CFI Decision”).

3.3During the present detention, on 18 April 2024, the Applicant applied for an extension of time to appeal against the CFI Decision.  The application for extension of time was dismissed by DHCJ KW Lung on 26 June 2024[2].

3.4As I understand the evidence, the Applicant has applied to the Court of Appeal to challenge DHCJ KW Lung’s refusal to extend time to appeal (CAMP 138/2024).  The said application has yet to be determined. 

4.  Current detention and its reviews

4.1As the Applicant’s passport had expired in September 2021, the Immigration Department has since 14 July 2022 (before the commencement of the present detention) liaised with the local Consulate General of India (“CG”) to issue a replacement travel document.

4.2Throughout the current detention, the Applicant has persistently expressed his unwillingness to return to his home country and refused to cooperate with the re-entry formalities at interviews conducted on 11 and 26 January, 15 and 16 February, 14 and 27 March, 9 and 22 May, 28 June, 1, 13 and 28 August, 5 September and 2 October 2024.

4.3Despite the Applicant’s stance, the Director has on various occasions sought assistance from the CG for alternative means for the issuance of a replacement travel document.  The CG has steadfastly maintained that a completed reentry application form and an in-person interview are prerequisites for the issuance of a replacement travel document.  Generally speaking, a replacement travel document can be issued in around 1 month upon fulfilling the stated requirements.

4.4In the review conducted on 24 June 2024, it was considered that there were grounds for the Applicant’s continued detention for the following reasons:

(1)  There was no outstanding non-refoulement claim related-issues and/or legal impediment hindering the Applicant’s removal;

(2)  The Applicant posed, or was likely to pose, a threat or security risk to the community;

(3)  The Applicant’s resistance in cooperating with the completion of the reentry seeking formalities had created self-indicated obstacle and prolonged his detention;

(4)  The Applicant’s criminal convictions were serious in nature, and there was a real risk of re-offending;

(5)  Given that the Applicant had repeatedly expressed unwillingness to return to India and that had no close connection / fixed abode, there was a real risk that the Applicant may abscond if released; and

(6)  There were no other circumstances in favour of his release.

4.5The above views were maintained in the latest review conducted on 16 September 2024.

5.  The Applicant’s submissions

5.1The Applicant’s written materials put forward the following matters:

(1)  The length of his detention has become unreasonable;

(2)  CAMP 138/2024 remains extant and he wishes to be released to handle those proceedings;

(3)  His previous convictions were immigration-related and do not indicate that he poses a threat or security risk to the community;

(4)  He has no previous history of non-compliance with his recognizance or bail conditions; and

(5)  The detention environment is akin to imprisonment and causes mental stress, and is demeaning and intrusive.

5.2At the hearing, the Applicant supplemented as follows.  The main thrust of his submissions is that he is not receiving care or medical treatment during detention. He is completely bedridden and he claims that he will receive better care whilst staying with friends were bail granted.  No details of those friends were given, apart from a general assertion that they live variously in Kowloon City, Tin Shui Wai and Tung Chung.  He also claims that the personnel at the detention facilities is unable to help him with his physiotherapy exercise.

6.  The applicable principles

6.1The applicable principles are set out in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99.  I have in particular borne in mind the summary set out at §164 thereof.

6.2I remind myself that the burden is on the Respondents to an application for a writ of habeas corpus to justify the lawfulness of the Applicant's detention.

6.3Under Section 32(4A) of the Ordinance, the detention of a person shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including (1) whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, (2) whether the person poses, or is likely to pose, a threat or security risk to the community, (3) whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, including the person not obtaining, or not providing assistance to obtain, any authorization from the relevant authorities of a place outside Hong Kong that is required for the person’s entry to that place and (4) factors that directly or indirectly prevent or delay the person’s removal that are not within the control of the Director.

6.4The Court of Appeal has recently provided guidance in Johnson Benjamin v Director of Immigration & Anor [2023] HKCA 1368 on, inter alia, how the court ought to approach a detainee’s own unreasonable behaviour or conduct in assessing the reasonableness of the length of his detention.  It is stated at §29(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.”

6.5Pertinently, where, as here, the Applicant has refused to cooperate with the reentry formalities, Johnson Benjamin is an authority for the proposition that this is a factor which may be taken into account in assessing the reasonableness of his detention.  At Johnson Benjamin §37, it is stated:

“ 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.”

7.  Analysis

7.1During the present detention, the Applicant is and has been detained pursuant to the various sections of the Ordinance.  It follows therefore that there is and has been prima facie lawful authority to detain the Applicant.

7.2The question which falls for determination is whether the detention has become unreasonable in all the circumstances, and hence unlawful.  The starting point is the period of detention, namely 300 days, against which the various other factors must be weighed and balanced.

7.3I accept that, throughout the period of detention, the intention of the Director/Secretary is to remove/deport the Applicant and that has been the only purpose of the Applicant's detention.  HS1 is satisfied.  I also accept that the Director has acted with diligence and expedition to effect the Applicant's removal.  HS4 is satisfied.  The foregoing is amply demonstrated by the efforts made for the issuance of a replacement travel document.

7.4At the commencement of the present detention, there was no legal impediment (by reason of the Updated Removal Policy) to the Applicant’s removal.  The only practical impediment is the Applicant’s refusal to render cooperation in completing the reentry formalities.

7.5I accept the Respondents’ submission that the Applicant should not be allowed to rely on a self-imposed obstacle in arguing that the detention has become unreasonable. 

7.6Whilst I accept that the Applicant’s criminal records are not so egregious to cause a significant concerns over the posing of a threat or security risk to the community, the risk of (re)offending remains relevant.  Were the Applicant to commit another offence, the consequent legal ramifications (potential prosecution and possible imprisonment) may delay his removal from Hong Kong.  I also accept the Respondents’ submission that an important consideration in the present case is the risk of the Applicant absconding, which would frustrate the very purpose for which the detention power was conferred and exercised.  I take stock of the Applicant’s persistent indications throughout the present detention of his unwillingness to be repatriated and lack of local ties.  It seems to me that the assessment of the existence of such risks cannot be said to have been unreasonably reached.

7.7In relation to his medical conditions, the evidence shows that, where necessary, the Applicant did receive medical treatment at outside facilities (Queen Mary Hospital) and records of his future appointments have been duly noted by the staff at the detention facilities.  In my view, and as previous cases have decided, there is no reason to believe that the Applicant would not receive proper medical treatment whilst in detention, if required (Mansuri, Intekhab Alam Mohamed Shakil Reza v Hong Kong SAR Government, HCAL 2428/2018, 6 November 2018).  Indeed, I am not persuaded by the Applicant that he would receive better care were bail granted.  No particulars have been provided by the Applicant, including the identities of the purported friends, and especially the living environment offered.

7.8Overall, weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

8.  Conclusion

8.1For the above reasons, the detention to date has remained lawful, and will remain lawful for this foreseeable future.

8.2As a result, I dismiss the Applicant's application for a writ of habeas corpus with no order as to costs.

The applicant, acting in person

Mr Angie Liu and Ms Lilia Chiu (Government Counsel) of Department of Justice, for the respondents