Md Babu v. Director of Immigration

HCAL 87/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 87 OF 2012

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REASONS FOR JUDGMENT

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A.  INTRODUCTION

1.This is the applicant’s application for a writ of habeas corpus. 

2.The applicant is a Bangladeshi and has been detained at the Castle Peak Bay Immigration Centre (“the Centre”) since 2 November 2011 by the Director of Immigration (“the Director”). 

3.On 6 July (a Friday), he made an ex parte application for the issue of a writ of habeas corpus.  In his supporting affidavit, he asked to be released from detention on recognizance.

4.The court directed a hearing of this application on 9 July (Monday).  At the court’s direction, the Director as the putative respondent also attended the hearing and was represented by Ms Parwani from the Department of Justice.

5.At that hearing, the court adjourned the application to 25 July and gave directions for the filing of further evidence in the interim.

6.The Director has since filed the Affirmation of Wong Tak Fai on 16 July and the applicant has filed a reply affidavit on 18 July.

7.On 25 July, after hearing submissions, I dismissed the applicant’s application with no order as to costs, and with reasons to follows.

8.These are my reasons.

B.  THE FACTS

9.The unchallenged evidence so far shows the following relevant background.

10.The applicant entered Hong Kong from Guangzhou by train in 2004 between August and October and was permitted to remain for 14 days.  He had however overstayed. 

11.In December 2006, the applicant applied for refugee status with the UNHCR (“the UNHCR application”). 

12.The UNHCR application was refused and the case closed on 8 June 2007.

13.The applicant was arrested by the Police on 25 October 2007 for the offence of overstaying.  He was later detained by the Director under s 26(a) of the Immigration Ordinance (Cap 115) (“the IO”) from 27 October to 29 October 2007, and later under s 26(b) of the IO from 29 October to 3 November 2007.

14.On 3 November 2007, the applicant was continued to be detained under s 32(2A)(a) of the IO pending the decision as to whether or not a removal order should be made against him. 

15.At the same time, the applicant had made a claim (“the torture claim”) under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

16.Eventually, a removal order (“the Removal Order”) was issued[1] against the applicant on 12 December 2007.  He was then detained under s 32(3A) of the IO pending his removal from Hong Kong.

17.The applicant’s appeal against the Removal Order was later dismissed by the Immigration Tribunal on 18 December 2007.  There is no outstanding legal challenge against the Removal Order.

18.On 19 May 2008, after a review of the applicant’s then detention, the Director decided to release him from detention on self-surety of $4,000, and requiring him to report to the Immigration Department (“the Department”) regularly.  He was released on 24 May 2008. 

19.Since then, he had been arrested a few times by the Police for various suspected offences.  He was either not charged eventually, or the charge laid was withdrawn subsequently. 

20.On 11 October 2011, the torture claim was refused by the Director.

21.Afterwards, the applicant was re-detained by the Director at the Centre on 2 November 2011 under s 32(3A) of the IO.

22.On 10 November 2011, the applicant applied to the UNHCR to re-open his case, which was refused on 14 May 2012.

23.Then on 1 June 2012, the applicant:

(1)  lodged a petition against the refusal of the torture claim; and

(2)  applied for the second time to the UNHCR to re‑open his case. 

24.The petition regarding the torture claim was dismissed by the adjudicator on 3 July 2012.  On 9 July 2012, the UNHCR also refused the applicant’s second request to re-open his case.

25.As I mentioned above, then on 6 July, the applicant made the present application for a writ of habeas corpus.

C.    THE PRESENT APPLICATION FOR A WRIT OF HABEAS CORPUS

C1.    The issue

26.As said by A Cheung J (as he then was) in Re Ogunade[2] at para 13, a habeas corpus application is an extraordinary remedy. The fundamental question that should be determined by the court in considering whether to issue a writ of habeas corpus is whether it can be shown that the detention is unlawful.  See Fidelis AQhuwaraezeama Emem v Superintendent of Victoria Prison[3] at 453C-D and 455A-B where Stock J (as he then was) said:

“Now the purpose of an application for habeas corpus is to determine whether there is lawful authority for a detention. It is not to determine the reasonableness of any decision or whether there has been some failure to observe the rules of natural justice. Those are matters properly within the realm of judicial review.

…

In conclusion I say this. I am here to examine the legality of the detention and that is all. Once it is shown that the underlying facts for the exercise of the powers existed, then that is the end of the matter.”[4]

27.After hearing the applicant at the hearing and reading his supporting affidavits, the grounds relied on by him in support of this application can be summarised as follows.

(1)  His UNHCR claim is still pending, as he has again applied to re‑open his case.

(2)  His application for legal aid has been approved to bring a claim for damages for unlawful detention in respect of his detention from 27 October 2007 to 24 May 2008.

(3)  His application for legal aid to bring another civil claim for damages for wrongful prosecution of robbery is still being processed.

(4)  His application for legal aid to bring a judicial review application against the refusal of the torture claim is still pending.

28.The issues arising are thus whether these grounds show that the applicant’s present detention is unlawful.

C2.  Discussion

29.In my view, none of the above grounds has any merits to show that his present detention is unlawful.  I will explain why.

30.As I summarised above, the present detention is made under s 32(3A) of the IO, which provides that a person in respect of whom a removal order is in force may be detained by the Director[5] pending his removal from Hong Kong. 

31.In the present case, given that the Removal Order is a valid one and in force, the Director therefore has lawful authority under s 32(3A) to detain the applicant pending his removal.  The detention is thus lawful.

32.The applicant’s above grounds made in support of this application may further raise the question of whether the period of his present detention has however been unreasonably long to render it unlawful. 

33.The statutory power of detention is generally one which is impliedly limited to a period which is reasonably necessary for that purpose: R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704 at 706D-F[6].

34.The Director has a discretion in respect of the continued detention of a person pending his deportation.  Pending deportation has been judicially interpreted to mean no more than “until” deportation, and so long as the Director is intent upon removing a person at the earliest possible moment and the Director remains reasonably of the view that he can do so within a reasonable period of time, and that it will not be impossible for him to remove the person within that reasonable period of time, then the Director is entitled to continue to detain that person in the exercise of his discretion: Mahesh Rai v Secretary for Security and the Director of Immigration[7]at para 12; A (Torture Claimant)[8] at para 31.

35.What is reasonable is dependent on the circumstances of each case and is not to be assessed with hindsight: Mahesh Rai, supra, at paras 16-17.

36.Applying these principles, I am of the clear view that the period of the applicant’s detention so far is reasonable viewed in the circumstances of the present case:

(1)  The Director’s evidence (which is unchallenged) shows that during this period of detention since November 2011, the Director has been mostly following up with the Consulate of Bangladesh for the issuance of a replacement travel document to the applicant to facilitate his re-entry for the purpose of the intended removal.  The applicant has claimed that he has lost his passport in early 2005 after coming to Hong Kong. 

(2)  In this following up, the applicant had during the detention refused to attend an interview at the Consulate for the purpose of processing the issue of a replacement passport to him.

(3)  It was only on 9 July 2012 that the Department received a confirmation from the Consulate that the applicant’s application for a replacement travel document was approved. It is thus now ready to remove the applicant from Hong Kong.

(4)  With this evidence, I am satisfied that the Director has all long intent upon removing the applicant at the earliest possible moment and the Director remains reasonably of the view that he can do so within a reasonable period of time, and that it will not be impossible for him to remove the applicant within that reasonable period of time.

37.Insofar as the applicant is relying on his various pending applications to ask this court to grant him “recognizance” so that he could deal with these applications, these are not grounds to show that the detention itself is unlawful.  They are therefore not proper grounds to support the issue of a writ of habeas corpus.

38.The applicant may be relying on these grounds to show that he should be entitled to continue to remain in Hong Kong to deal with these pending applications and thus should not be removed now, and if he is continued to be so detained until the end of all these pending applications, such detention would be unlawful as the pending removal is unlikely to happen within a reasonable time.  I do not accept this contention for the following reasons.

39.First, the applicant’s pending civil claims do not constitute a good reason why he should not be removed to his home country, as his physical absence in Hong Kong would not deny him these claims.  See: Abid Saeed v Director of Immigration[9], at paras 41 to 43 per Hartmann JA.  This is thus not a valid ground to show that his continued presence in Hong Kong is required for these pending civil claims and that he should not be removed until the end of these claims.

40.Second, I do not regard the applicant’s latest and recent third application (as he informed the court at the hearing that he has done so) to ask the UNHCR to re‑open his case has any merits.  As shown in the above summary of the background, the UNHCR application was refused and closed in June 2007, some 5 years ago.  It was only after he was re‑detained in November 2011 (more than 4 year later) that he applied to the UNHCR to re‑open the case, which application was later refused. His second application (in June 2012) to re‑open the case was also quickly refused.  The UNHCR application has thus been looked at by the UNHCR repeatedly and rejected.  Under these circumstances and with the evidence presently before me, I am of the view that this third application to re‑open the case is nothing more than a delaying tactics adopted by the applicant seeking to delay the pending removal, and there is nothing to show me that there is a reasonable likelihood that the UNHCR would so re‑open the UNHCR application. 

41.Third, insofar as the applicant’s pending application for legal aid to bring a judicial review application against the refusal of the torture claim is concerned, the Director has through counsel undertaken to this court that he would not remove the applicant from Hong Kong before the Legal Aid Department has made a decision on this.  There is no suggestion or evidence to show that the Legal Aid Department would take an unreasonably long time to consider this.  In these circumstances, and given the Director’s undertaking, I also do not see this as a valid ground to support the present habeas corpus application.

D.  CONCLUSION

42.For all these reasons, I dismissed the application.

43.Lastly, I thank Counsel for her assistance.

The applicant, in person, present

Ms Audrey Parwani, GC of the Department of Justice, for the putative   respondent