Hattanage Moleen Ramani v. Hong Kong Sar Government

HCAL 474/2025

[2025] HKCFI 1337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 474 OF 2025

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D E C I S I O N

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A.  Introduction

1.I have before me an application for writ of habeas corpus by the Applicant filed on 21 February 2025 seeking her release from Nei Kwu Correctional Institution where she is presently being detained (“the Application”). She has been detained since 26 July 2024 making the period of detention to date 249 days (“the Detention”).

2.On 25 February 2025, I directed the Director of Immigration (“the Director”) to inter alia lodge and serve a response to the Application and the Applicant’s Affirmation filed in support of the Application. A Response/Skeleton Submissions for the Director dated 17 March 2025 (“1^st Submissions”) has been lodged.

3.A Supplemental Response/Skeleton Submissions for the Secretary for Security and the Director of Immigration was lodged on 28 March 2025 (“2^nd Submissions”) as a result of recent developments since the 1^st Submissions. It appears from the 2^nd Submissions that since 26 March 2025, the Applicant has been detained under s.29(1) of the Immigration Ordinance, Cap. 115 (“IO”) for enquiry as to whether a deportation order should be made as authorised by a Principal Assistant Secretary for Security. Previously, she was detained under s.32(3A) of IO under the authority of the Assistant Director of Immigration. Accordingly, both the Secretary for Security (“the Secretary”) and the Director should be the proper Respondents to the Application. On 28 March 2025, I gave leave for the 2^nd Submissions to be lodged and served on the Applicant.

4.At today’s hearing, the Applicant has appeared in person with the benefit of an interpreter. The Director and the Secretary are represented by Mr Lee, Senior Government Counsel.

5.This is my Decision having heard the oral submissions of the Applicant and Mr Lee.

B.  Background

B1.  Immigration status and stay in HK

6.The Applicant is a Sri Lankan national born in 1962.

7.The Applicant claimed to have arrived in Hong Kong on 7 August 2004 and was permitted to remain as a visitor for one month. However, she did not depart and had overstayed since 7 September 2004.

8.On 25 September 2006, the Applicant was arrested by the Police for theft, breach of condition of stay by overstaying and possession of an identity card relating to another person.

9.On 15 November 2006, the Applicant was convicted of the offences of possession of identity card relating to another person and breach of condition of stay by overstaying. She was sentenced to 8 months’ imprisonment.

10.The Applicant was discharged from prison on 5 May 2007.

11.On 4 April 2007, a removal order (“RO”) was made against the Applicant. She was detained under s.32(3A) of IO.

12.On 22 May 2007, the Applicant was released on recognizance.

13.On 26 July 2024, the Applicant’s recognizance was ceased and she was detained under s.32(3A) of IO.

B2.  The Applicant’s Torture and Non-Refoulement Claim (“NRC”) and related legal proceedings

14.The Applicant first lodged a torture claim on 8 January 2007. On 26 July 2013, the Director refused the Applicant’s torture claim. On 8 July 2014, the Applicant’s appeal against the refusal was dismissed by the Torture Claims Appeal Board.

15.On 12 September 2013, the Applicant raised a NRC on grounds other than torture. This was refused by the Director on 30 May 2018. On 17 May 2019, the Applicant’s petition against the refusal was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

16.On 23 May 2019, the Applicant applied for leave to apply for judicial review against the Board’s decision (“the JR Leave Application”). On 5 April 2024, the JR Leave Application was refused by DHCJ K.W. Lung. The Applicant appealed against the refusal on 16 April 2024 but the Court of Appeal dismissed that appeal on 24 September 2024. The Applicant applied for leave to appeal to the Court of Final Appeal but that application was dismissed on 13 March 2025.

17.17.  On 5 November 2024, the Applicant’s request to make a subsequent NRC (“the Subsequent NRC”) was received by the Director. Notwithstanding the Director’s request made on 29 November 2024  that all available evidence and supporting documents must be submitted by 13 December 2024, the Applicant submitted documents in a piecemeal manner on 28 October, 2024, 12 November 2024, 20 November 2024, 3 December 2024, 12 December 2024, 16 December 2024, 31 December 2024 and 19 February 2025. The Subsequent NRC was refused by the Director on 25 March 2025.

B3.  Steps towards the removal of the Applicant

18.Even prior to the Applicant’s detention, on 23 September 2022, the Director wrote to the Embassy of the Democratic Socialist Republic of Sri Lanka in Beijing (“the Embassy”) requesting a temporary travel document to be issued to the Applicant to facilitate her removal from Hong Kong. Through continued liaison with the Embassy, a travel document for the Applicant was issued on 14 October 2024 with an expiry date of 12 April 2025.

19.On 26 March 2025, a repatriation flight for the Applicant’s return to Colombo, Sri Lanka, was scheduled for 10 April 2025.

20.Throughout the Applicant’s detention, the Director conducted various interviews with the Applicant. Since 14 August 2024, the Applicant has indicated her unwillingness to leave Hong Kong at all interviews.

B4.  Reviews of Detention

21.The last review of detention conducted by the Director was on 22 January 2025. Having considered and balancing the following factors, it was decided by the Director that the release of the Applicant on recognizance was not warranted:

(1)  There is no reason why the Subsequent NRC, for which priority was sought to be accorded, could not be finalized in the near future and as such the Applicant’s removal is going to be possible within a reasonable time;

(2)  A temporary travel document was issued and valid until 12 April 2025;

(3)  The Applicant having committed the offence of possession of an identity card relating to another person whilst being released on recognizance, coupled with her unwillingness to leave, there exists a real risk of her absconding and re-offending; and

(4)  The Applicant claimed that she had a cousin who can act as her guarantor but there is no means to contact the cousin; and

(5)  On balance of all factors including the duration of detention, release on recognizance was not warranted.

22.On 25 March 2025, based on the following factors, the Secretary decided the Applicant should remain in detention:

(1)  The inquiry as to whether the Applicant ought to be deported was going to be concluded in the near future;

(2)  The Applicant constituted a threat/security risk to the community;

(3)  The Applicant may abscond and/or reoffend; and

(4)  There were no other circumstances in favour of the Applicant’s release.

C.  The Applicant’s submissions

23.In the Applicant’s Affirmation, the following submissions were made:

(1)  She claimed that her life is in danger if she returns to Sri Lanka;

(2)  She claimed her health is not good, she is 64 year old now and started to have acne whilst in detention. She claimed that she did not receive good treatment. She is worried about contracting more diseases in detention;

(3)  She has ongoing legal proceedings and a subsequent NRC Claim which have not been determined and therefore it is not possible to remove her within a reasonable period;

(4)  Her travel document is still not ready;

(5)  She has never absconded or breached any bail conditions; and

(6)  She is able to provide a guarantor and provide a home address where she can be located.

24.At the hearing, the Applicant confirmed that the preceding paragraph represents an accurate summary of her submissions. Apart from reiterating her plea to be released from detention because her life is in danger if she were returned to Sri Lanka, and she has never done anything wrong in Hong Kong, the Applicant did not have further submissions. When pointed out to her that as her Subsequent NRC has been determined such that there are no outstanding legal proceedings, and a valid travel document has been secured for her return to Sri Lanka scheduled for 10 April 2025, she submitted that she wished to be released until then.

25.I will take into account these submissions and give them such weight in the balancing exercise as seems to me to be appropriate.

D.  Applicable Principles

26.The applicable principles to be applied in an application for habeas corpus are well-established. They were set out by the Court of Appeal in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99. See in particular the summary of the principles at §164.

27.I also remind myself that the burden is on the respondents to an application for writ of habeas corpus to justify the lawfulness of the applicant’s detention.

28.Under s.32(4A) of IO, 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, 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;

(2)  The time required for the issue of the authorization referred to in (1);

(3)  Whether the person poses, or is likely to pose, a threat or security risk to the community; and

(4)  Factors that directly or indirectly prevent or delay the person’s removal that are not within the control of the Director.

29.Moreover, the Court of Appeal recently provided guidance in Johnson Benjamin v Director of Immigration [2024] 1 HKLRD 582 on how the court ought to approach a detainee’s own unreasonable conduct and acts which caused, necessitated or prolonged any period of detention. See 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 behaviour or conduct 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.Furthermore, at §37, it was held that even if there is an ongoing NRC, 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 NRC is disposed of.

E.  Analysis

31.With the above principles in mind, I consider whether the Detention is lawful.

32.There is clear prima facie authority for the detention of the Applicant throughout the Detention under ss.32(3A) and 29(1) of IO.

33.The question which then falls for determination is whether the detention has become unreasonable in all the circumstances and hence unlawful. That question requires an assessment in accordance with the Hardial Singh principles, namely that:

(1)  The 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 Director will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention (“HS3”); and

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

See Harjang Singh at §164(8).

34.The starting point is that the period of detention to date is 249 days, against which the other factors must be weighed and balanced.

35.I accept that the Applicant has been detained for the purpose of her removal from Hong Kong and since 26 March 2025 for deportation inquiry, and that the power of detention is being used only for these purposes. This is evident from the Director’s efforts in seeking travel documents for the Applicant even before the Detention and request to accord high priority to the determination of the Subsequent NRC. Therefore HS1 is satisfied.

36.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 to seek travel documents as already mentioned and continued liaison with the Embassy to secure the return of the Applicant to Sri Lanka once there is no legal impediment to her return. This is also evident from the Director’s according of priority to the determination of the Subsequent NRC which has now been determined. HS4 is also satisfied.

37.Given that the Subsequent NRC has been determined, such that there is no legal impediment for the Applicant’s removal, there being a valid travel document secured for the Applicant and a flight has been scheduled for 10 April 2025, it is reasonable to think that deportation can be effected within a reasonable period.

38.If the Applicant is uncooperative, of course any unreasonable behavior which prolongs detention will not be regarded as an unreasonable period of detention.

39.I accept the Director’s and the Secretary’s assessment that with the Applicant’s history of offences committed including overstaying, coupled with the Applicant’s stated unwillingness to return to Sri Lanka, there is a real risk of the Applicant absconding and/or re-offending. If she were to abscond, that would defeat the primary purpose for which the power to detain has been conferred and the intended effect of the RO and any deportation order to be made.

40.As regards the Applicant’s fears of her own safety if she was repatriated, as has been stated and repeated in many previous decisions, an application for writ of habeas corpus is not an opportunity to continue to assert one’s fears underpinning the NRC and the court in an application for habeas corpus will not look into the merits of such claim.

41.In relation to the Applicant’s medical conditions, the Applicant has been advised to approach the welfare officer and medical officer if, and when, she requires medical treatment. In view of previous cases decided, there is no reason to believe that the Applicant would not receive proper medical treatment whilst in detention, if required: see e.g. Mansuri, Intekhab Alam and Anor v Hong Kong SAR Government (Unrep) HCAL 2428/2018, 6 November 2018, per Chow J (as he then was) at §27.

42.I do not believe that the Applicant’s offer of a guarantor can have the effect of outweighing the matters identified in the preceding paragraphs to justify her release.

43.Overall, weighing the period of detention against all other factors, HS2 and HS3 are also satisfied.

F.  Conclusion

44.By reasons of the above, I dismiss the Application with no order as to costs.

The Applicant, appeared in person

Mr Felix Lee, Senior Government Counsel, of Department of Justice for the Respondent