‘a’ v. Director of Immigration
Read the full judgment text of CACV 314/2007 on BabelCite. This Court of Appeal judgment was delivered on 18 July 2008 before Tang VP, A Cheung J, Barma J.
Immigration law – detention of torture claimants – power to detain under section 32 of the Immigration Ordinance (Cap 115) – 1984 Convention Against Torture Article 3 – Hong Kong Bill of Rights Article 5 – validity of removal and deportation orders – whether convention claim affects power to detain – Hardial Singh principles – certainty and accessibility of grounds for detention – judicial review and habeas corpus – Court of Appeal consolidated four appeals by torture claimants 'A' (Algerian), 'F' (Sri Lankan), 'AS' (deportation order) and 'YA' (Togolese) who challenged the lawfulness of their detention under section 32 of the Immigration Ordinance following the making of claims under the 1984 Convention Against Torture – the Secretary for Security had a policy of not removing persons to countries where torture claims were well-founded – whether the making of a convention claim invalidates a removal or deportation order – whether the power to detain under section 32 remains exercisable after a convention claim – whether detention complies with Article 5 of HKBOR – whether judicial review and habeas corpus satisfy Article 5(4) – court held that a convention claim does not affect the validity of a removal or deportation order, since the order requires departure from Hong Kong without specifying a destination country and the Director has a separate discretion under section 25 to direct removal to a specified country – the power to detain under section 32 remains exercisable in principle so long as the Secretary is intent upon removal and removal within a reasonable time is not impossible, applying the Hardial Singh principles approved by the Privy Council in Tan Le Lam – however, the detention was not in compliance with Article 5(1) of HKBOR because the grounds and procedure for detention were not sufficiently certain and accessible – the Director's alleged policy contained in a LegCo paper dated 1 December 2006 was not in existence when 'A', 'F' and 'AS' were detained, was not available on the Immigration Department website, and was not accessible to persons in detention – the Hardial Singh principles developed through case law are not sufficiently accessible to satisfy the certainty and accessibility requirement – judicial review and habeas corpus proceedings are capable of meeting the requirements of Article 5(4) – appeals allowed with costs, with costs to be taxed in accordance with the Legal Aid Regulations – the court was minded to declare the detention unlawful after the making of the convention claims and invited the parties to agree on the wording of the declaration.
Legal issues: Validity of removal/deportation orders after making of a convention claim · Lawfulness of detention pending removal under section 32 · Compliance of detention with Article 5 of the Hong Kong Bill of Rights · Compliance with Article 5(4) of the Hong Kong Bill of Rights
Outcome: Appeals allowed with costs. The court declared itself minded to hold that the detention of the applicants was unlawful after the making of the convention claims, and invited the parties to provide an agreed wording for the declaration. The question of whether the full period of detention was lawful was reserved for separate adjudication.
Cites 2 cases
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CACV 314/2007 & CACV 315/2007 & IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 314 OF 2007 (ON APPEAL FROM HCAL NO. 100 OF 2006) --------------------- BETWEEN
--------------------- AND CACV 315/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 315 OF 2007 (ON APPEAL FROM HCAL NO. 11 OF 2007) --------------------- BETWEEN
--------------------- AND CACV 316/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 316 OF 2007 (ON APPEAL FROM HCAL NO. 10 OF 2007) --------------------- BETWEEN
--------------------- AND CACV 317/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 317 OF 2007 (ON APPEAL FROM HCAL NO. 28 OF 2007) --------------------- BETWEEN
---------------------- (HEARD TOGETHER)
Before: Hon Tang VP, A Cheung J and Barma J in Court Date of Hearing: 17 June 2008 Date of Judgment: 18 July 2008 _______________ JUDGMENT _______________
Hon Tang VP (giving the of the Court): Introduction 1.The 1984 Convention Against Tortureand other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”) applies to Hong Kong. 2.Article 3.1 of the Convention states:
3.The Secretary for Security (“the Secretary”) has adopted the policy of not deporting or removing a person to a country where that person’s claim that he would be subjected to torture in that country was considered to be well-founded. 4.In Secretary for Security v Sakthevel Prabakar [2004] 7 HKCFAR 187, the Secretary accepted that the determination of a claim made under the Convention must be made fairly. The Chief Justice said:
5.In this appeal, each of the 4 applicants has made a claim under the Convention. Their claims have been rejected by the Secretary. The Secretary has taken about 8, 15, 17 and 22 months respectively to complete the assessment of the applicants’ claims. We are not concerned with the correctness of the Secretary’s decision, which is the subject of challenge in separate proceedings. We are concerned with the power of detention under the Immigration Ordinance, Cap.115 (“the Ordinance”), after the making of the claims. The applicants’ contention that their detention was unlawful is the subject of the present proceedings. Background 6.The applicant ‘A’, an Algerian, and ‘F’, a Sri Lankan, were the subject of removal orders made under section 19(1)(b) of the Ordinance dated 15 June 2006 and 30 June 2005 respectively. ‘A’ made a convention claim on 14 June 2006. ‘A’ was granted leave to apply for judicial review on 13 September 2006. On the same day, he was granted bail by Hartmann J. ‘F’ made a convention claim on 5 July 2005. ‘F’ was granted leave to apply for judicial review on 5 February 2007. 7.‘AS’ was the subject of a deportation order made by the Secretary made under section 20(1)(a) of the Ordinance dated 23 May 2005. ‘AS’ made a convention claim on 14 June 2005. ‘AS’ obtained leave to apply for judicial review on 5 February 2007. 8.‘YA’ was refused admission into Hong Kong on arrival from Paris on 16 October 2006. He is from Togo, West Africa. He made a convention claim on 25 October 2006. A removal order was made against him under section 19(1)(b) on 1 February 2007. He applied for a writ of habeas corpuson 19 March 2007, and the writ was issued by Hartmann J on 20 March 2007. He was released on recognizance on 29 March 2007. 9.Shortly before the hearing, both ‘AS’ and ‘F’ were released on their recognizance. Power to detain 10.The power to detain was conferred by section 32 of the Ordinance. Section 32(3) and 32(3A) are relevant. They provide:
11.Before a person could be detained under section 32 there must first be a removal order under section 19(1)(a) or section 19(1)(b), or a deportation order made under section 20. Furthermore the person could be only detained pending his removal from Hong Kong under section 25. 12.Section 19 provides:
13.As noted, ‘AS’ was the subject of a deportation order made under section 20 by the Chief Executive. Under section 20(5):
14.Section 25 provides:
Article 5 of Hong Kong Bill of Rights (“HKBOR”) 15.Mr Dykes, SC for the applicants, relied on the following paragraphs in Article 5 of HKBOR:
16.Under Article 5(1), the detention must not be arbitrary, and it must be on such grounds and in accordance with such procedure as are established by law. They are separate requirements. The expressions “prescribed by law”, “established by law”, “according to law” or similar expressions mandate the principle of legal certainty and the requirement of accessibility. Shum Kwok-sher v HKSAR [2002] 5 HKCFAR 381. 17.A double test is applied:
per Brooke LJ in D & Others v Home Office [2006] 1 All ER 183, a decision of the English Court of Appeal on the European equivalent of Article 5 of BORO. The Appeal 18.On 15 June 2007, Hartmann J dismissed all the applications, holding that the detention was lawful under domestic law and complaint with Article 5 of HKBOR. This is the applicants’ appeal. However, the issue whether the full period of the detention was or was not lawful was left to be adjudicated separately. That has since been dealt with by the learned judge who has reserved judgment. We are not concerned with this question. 19.The applicants are represented by Mr Philip Dykes, SC, Mr Hectar Pun and Ms Ho Wai Yang. The respondent is represented by Mr Anderson Chow, SC, and Ms Grace Chow. Legality under Domestic Law The making of the section 19 or section 20 orders 20.Mr Dyke submitted that given the Secretary’s policy not to remove the applicants to the state in which there was an outstanding claim under the Convention, the Secretary was not entitled under the Ordinance to order the removal or deportation of the applicants. 21.We agree with Mr Chow that while the making of a removal or deportation order (We use the two interchangeably) has the immediate effect of requiring the person who is subject to the order to leave Hong Kong, it does not require that person to go to any particular country. Nor does it oblige the Director of Immigration (“the Director”) to immediately send that person to any particular country. 22.When the person fails or refuses to leave voluntarily, the Director may take steps to effect his removal in accordance with section 25. This involves another statutory discretion, which has to be exercised in light of all relevant surrounding circumstances including the appropriateness, feasibility and practicality of the steps proposed to be taken. An individual could be removed to a specified country which is defined in the Ordinance to mean:
23.There is nothing in the Ordinance which requires the Director to bring about immediate removal under section 25. Nor does it follow the person would be sent to the state in respect of which he has made a convention claim. The making of a convention claim only means that the individual cannot be returned to the particular state in relation to which he has made the claim. 24.Mr Dykes submitted that unless removal could be effected within a reasonable time, no removal order could or should be made. He pointed to the fact that the making of a removal order may expose the person to criminal prosecution for overstaying in Hong Kong. The supposed risk of prosecution is unreal. So long as removal remains a real possibility, I can see no reason why a removal order should not be made. 25.As the learned judge said the Ordinance clearly contemplates that it may not be possible to bring about immediate physical removal. For example, under section 36, the person may be released on recognizance. Under section 34, the deportation order may be suspended. Under section 19(5), a person who is served with a removal order may appeal that order and may not be removed until all rights in that regard have been exhausted. There is also the possibility of judicial review, the resolution of which may take a considerable period of time. Thus, the removal order may trigger lengthy proceedings with the result that the person will not be removed for a considerable length of time. It is illogical to say that the lengthy proceedings which may be triggered by the removal order could in turn affect the power to make the removal order in the first place. By the same token, the validity of a removal order cannot be affected by the subsequent making of a convention claim. Detention pending removal 26.Under section 32, a person may be detained pending his removal from Hong Kong under section 25. 27.The leading authority on the power to detain pending removal is R v Governor of Durham Prison, Ex parte Hardial Singh [1984] 1 WLR 704, a decision of Woolf J (as he then was), which was concerned with the power to detain pending removal under the Immigration Act 1971. There Woolf J said:
28.Hardial Singh has been approved by the Privy Council in Tan Le Lam v Tai A Chau Detention Centre [1997] AC 97, on appeal from Hong Kong concerning the power to detain a Vietnamese migrant pending his removal from Hong Kong under the Ordinance. 29.As the Chief Justice has explained in Thang Thieu-quyen v Director of Immigration [1997] 1 HKCFAR 167 at 188:
30.In R (Khadir) v Home Secretary [2006] 1 AC 207, Lord Brown of Eaton-under-Heywood said in a similar context:
31.We agree with Mr Chow that these authorities show that so long as the Secretary is intent upon removing the applicant at the earliest possible moment, and it is not apparent to the Secretary that the removal within a reasonable time would be impossible, the power to detain pending removal is in principle still exercisable. 32.As Lord Brown said in Khadir:
Legality under HKBOR Article 5 of HKBOR 33.Under Article 5 detention must not be arbitrary and the grounds and procedure for detention must also be certain and accessible. Mr Dykes submitted that in the absence of some published policies as to the circumstances under which the power to detain would be exercised, the power of detention under section 32 is contrary to Article 5(1) of HKBOR. 34.In Amuur v France (1996) ECHR 25 at [50], the European Court of Human Rights observed:
35.In R v Governor of Brockhill Prison Ex Parte Evans 2 [2001] 2 AC 19, Lord Hope of Craighead said at page 38:
36.In Nadarajah v. Secretary of State for Home Department [2003] EWCA Civ 1768, the English Court of Appeal was concerned with 2 appeals, both concerning asylum-seekers, who had been detained for a period on the ground that their removal from the United Kingdom was imminent, after each had through his lawyer notified the Secretary for State of his intention to initiate proceedings to challenge the decision to remove him. The common issue was whether in those circumstances the detention of the asylum-seeker was lawful, having regard to the policy that the Secretary of State purported to follow and to the requirements of the Human Rights Act 1998. The policy which the Secretary of State followed was contained in Chapter 38 of the Operations Enforcement Manual (“Chapter 38”) relating to detention of immigrant. Section 6(1) of the Human Rights Act makes it unlawful for the Secretary of State to act in a way which is incompatible with specified articles of the European Convention on Human Rights, including Article 5. There is no material difference between Article 5 of European Convention and Article 5 of HKBOR. The English Court of Appeal concluded that the detention was unlawful, and the declaration regarding each of the applicants that his detention was unlawful was upheld. 37.There, Lord Phillips MR, delivering the judgment of the court, said:
38.Chapter 38 sets out 5 reasons for detention and 13 factors which can form the basis of detention. Most of the factors are relevant to the question of whether a particular reason exists. It was held that the policy was lawful, but it was not accessible. Lord Phillips MR went on to say:
39.Mr Chow submitted that there is no principle of law which requires that a holder of general statutory power must publish some policy or written guidelines as to how he would exercise the power. He submitted that it is well-established that it would be unlawful for a statutory authority to fail to exercise a discretion in any given case by blindly following a policy laid down in advance. It is a fundamental rule for the exercise of discretionary power that discretion must be brought to bear on every case: each case must be considered on its own merits and decided as the public interest requires at the time: Wade & Forsyth on Administrative Law, 9th Edition, pages 324-326. 40.But we are here concerned with situations where Article 5 of HKBOR applies. Here the critical question is not whether there are policies as to the circumstances under which the power to detain might be exercised, the question is whether the grounds and procedure for detention are sufficiently certain and accessible, as is required by Article 5. 41.Mr Chow accepted that detention under section 32 is not mandatory or automatic. That a person may be removed under section 25 gives rise to the power to detain under section 32, but section 32 is silent on how that power should be exercised. As the Chief Justice said in Thang Thieu-quyen at 188:
Article 5 also requires that the grounds and procedure for the exercise of the power to detain must be certain and accessible. They could be made certain by a policy and accessible by publication. But the making of a policy is not the only way. Legislation, whether substantive or subsidiary, may do as well. But the question in every case must be, whether the grounds and procedure for detention are sufficiently certain and accessible. 42.Lord Phillips MR said in Nadarajah:
We feel sure that in Nadarajah had there been no policy at all the English Court of Appeal would have found that the domestic law was not sufficiently certain. 43.Mr Chow submitted that Nadarajah was distinguishable. There the Home Secretary had a policy. Since there was a policy, the policy must be accessible. But, here, his primary submission is that there is no policy. As we have explained, the question is not whether there are policies, but whether the grounds and procedures for detention are certain and accessible. It does not make sense that if there is a policy, the court may consider whether the policy is lawful, and if so whether the policy is accessible but that if there is no policy, it does not matter that one does not know at all the basis upon which detention was ordered. 44.Mr Chow then submitted that the learned judge was right that having regard to Hardial Singh and general administrative law, the discretion of the Secretary under the Ordinance could not be regarded as unfettered. But, with respect, the point is not whether the power is unfettered but whether the grounds and procedure for its exercise are sufficiently precise and accessible. Section 32 does not spell out the circumstances under which the power to detain pending removal might be exercised. 45.The learned judge and Mr Chow relied on the judgment of Keith J (as he then was) in Chieng A Lac and Others v Director of Immigration [1997] 7 HKPLR 243, where Keith J said he regarded:
46.Hartmann J said:
Hardial Singh provides a useful illustration that statutory powers:
47.In Chieng A Lac, Keith J was concerned with the detention of Vietnamese refugees under section 13D(1) in Part III A of the Ordinance. There the applicants also relied on Article 5 of HKBOR. The legality of the detention was challenged on the basis of its length, its indefinite nature and the reasons why it was ordered, namely, deterrence, security and public opinion. As Keith J made clear the reasons for the policy of automatic detention under section 13D(1) had been “comprehensively and clearly stated”. Nor was any point taken about the accessibility or certainty of that policy. 48.In that context Keith J said the material part of Article 5(1), was:
49.Keith J then explained:
50.Keith J went on to consider the matter on the basis that the word ‘arbitrary’ also meant “unjustifiable” and in that context he concluded that the policy of automatic detention was justifiable for the reasons given on behalf of the Director. In the passage quoted in para. 45 above, Keith J was not concerned with the question whether the policy was certain and accessible. 51.It may be that when the full implication of the Hardial Singh principle is worked out in the courts, one would know the true limits to the power to detain under section 32. In that event, it may be that the law could be said to be sufficiently certain. But even if the true limits could be ascertained from Hardial Singh and subsequent cases, that would not satisfy the requirement that the grounds and procedure must be accessible. They would not be reasonably accessible to a convention claimant. What accessibility requires will depend on the circumstances and common sense must come into it. But we feel sure that in the case of a convention claimant, they cannot be regarded as sufficiently accessible even if they could be found in “Hardial Singh and subsequent authorities”. 52.Insofar as Hartmann J thought otherwise, with respect, we disagree. The Director’s Policy 53.Mr Chow’s primary submission is that the Director does not have a policy, and that the law does not require him to have one. We have already dealt with these submissions. We add only that it is inconceivable that the Director has no policy at all. 54.Mr Chow’s alternative submission is that the Director does have a policy and that it is accessible. The policy is said to be contained in a document headed “Supplementary information in relation to situation of refugees, asylum seekers, and torture claimants”, supplied to the Legislative Council (“LegCo”), by LC Paper No. CB(2)526/06-07(01) (“the LC Paper”). The policy is said to be contained in para. 17 of this document which reads:
55.The LC Paper was not produced before the learned judge. Mr Chow sought leave to rely on it before us. Mr Dykes did not object. Mr Chow submitted that although this is a statement of the policy, this should not be taken as an exhaustive statement. 56.In Nadarajah, the policy relied upon by the Home Office stated, inter alia:
57.So we can well believe the para. 17 is an incomplete statement of the Director’s policy. 58.In Nadarajah, the English Court of Appeal upheld the declaration that the detention was unlawful because the policy was not accessible in its entirety. 59.We are not prepared to assume that para. 17 contains a sufficient statement of policy. Nor would a reader of para. 17 realise that it is supposed to contain a statement of the Director’s policy on detention of a convention claimant under section 32. 60.In any event, we are not satisfied that it was accessible. Mr Chow said the LegCo Paper is available on the website of the LegCo. It is not known whether the policy was available on the website of the Immigration Department. But as Mr Dykes has submitted a person in detention would not have access to the Internet. We do not believe that the guideline could be said to be accessible. 61.Furthermore, the LegCo paper was dated 1 December 2006. ‘F’ was ordered to be removed and detained on 30 June 2005. ‘F’ was placed under detention on 28 May 2005 pending the decision of removal order. In the case of ‘A’, he was ordered to be removed on 17 June 2006. In the case of ‘AS’, he made his claim on 14 June 2005. In the case of ‘YA’, he was refused admission on 16 October 2006 at which time he made the claim for refugee status and that he was detained from 14 December 2006. So the LegCo Paper was not in existence when ‘S’, ‘F’ and ‘AS’ were detained. 62.Mr Chow also submitted that the applicants had been told the basis of their detention when their request for release on recognizance was rejected. We do not believe such piecemeal disclosure of policies would satisfy Article 5(1)’s requirement that the grounds be certain and accessible. 63.Article 5 requires that the detention be not arbitrary and in accordance with certain and accessible grounds and procedure. In other words, it is for the Director to justify detention and not for the applicant to seek release from detention. The existence of clear and lawful policy ensures that the Director, when making his decision whether or not to detain, would have had all the relevant circumstances under consideration, and that the decision to detain would not be arbitrary. The availability of such grounds would also enable an applicant to know how best to ensure that he is not detained. To be told the grounds why release on recognizance was refused is not a sufficient compliance with the requirement that the grounds and procedure for detention should be certain and accessible. Insofar as Hartmann J thought otherwise, with respect, we disagree. 64.In any event, the letters relied on by Mr Chow are far from satisfactory, apart from the fact that they were concerned with release on recognizance, and we are concerned with the decision to detain. 65.In the case of ‘A’, the letter from the Director dated 17 June 2006 responding to Messrs Barnes & Daly’s request for release on recognizance, said:
66.By letter dated 6 August 2006, ‘A’ was further told:
67.On 17 August 2006, Messrs Barnes & Daly were told:
68.The letter of 17 June 2006 does not contain a statement of all the grounds thought to be relevant to ‘A’’s case, still less all the grounds that might be taken into account. The letter of 6 August 2006 is even less informative. The letter of 17 August 2006 again failed to state all the grounds which were relevant to the Director’s consideration of ‘A’’s case. 69.We will not go on to consider the letters relied on in relation to the other applicants. Suffice to say that they are no better than the letters written to ‘A’ or his solicitors. Article 5(4) 70.Article 5(4) requires that the lawfulness of the decision to detain should be determined by the court. Mr Dykes submitted that the proceedings by way of judicial review or the writ of habeas corpus, are unsatisfactory and insufficient compliance with the requirement of Article 5(4). Here we are in respectful agreement with Hartmann J that proceedings by way either of judicial review or habeas corpus are capable of adequately meeting the requirements of Article 5(4), and that:
Conclusion 71.We allow the appeals with costs. The Applicants’ own costs to be taxed in accordance with the Legal Aid Regulations. We are minded to declare that the detention was unlawful after the making of the convention claims. However, we have heard no submissions on the wording of the actual declaration which should be made. We invite the parties to provide an agreed wording for the court’s consideration. Failing agreement, the parties should provide written submissions to the court.
Mr. Philip Dykes, SC and Mr. Hectar Pun, instructed by Messrs Barnes & Daly, assigned by Director of Legal Aid for ‘A’ and ‘YA’ Mr. Philip Dykes, SC and Ms. Ho Wai Yang, instructed by Messrs Barnes & Daly, assigned by Director of Legal Aid for ‘F’ and ‘AS’ Mr. Anderson Chow, SC and Ms. Grace Chow, instructed by Department of Justice, for the Respondent |
Cases cited in this judgment
Further hearings and rulings under CACV 314/2007