Mbogga Nasser v. Hong Kong Sar Government and Another

HCAL 142/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 142 OF 2012

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J U D G M E N T

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1.This is an application by the applicant for the issue of a writ of habeas corpus, which was filed with the court in late afternoon on 7 November 2012.  At the court’s direction, the putative respondents appear today and are represented by counsel of the Department of Justice.

2.It is trite that in determining the merit of an application for a writ of habeas corpus, the fundamental question that the court has to decide is whether the detention is unlawful, and there are two aspects of it.  First is whether there is legal authority to make the subject detention under the proper and relevant laws or legislations, and secondly, whether the applicant has since been detained for such an unreasonably long period of time which renders an initially lawful detention unlawful.  See respectively Fidelis Aqhuwaraezeama Emem v Superintendent of Victoria Prison [1998] 2 HKLRD 488 at 453C‑D and 455A-B per Stock J (as he then was) and R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 at 706D-F as applied in Hong Kong by the Court of Appeal in A (Torture Claimant) v Director of Immigration [2008] 4 HKLRD 752, at paragraphs 26-31.

3.Insofar as the present application is concerned, as helpfully summarised by Ms Parwani for the putative respondents, the applicant’s grounds in support of the application (as set out in his affirmation) are basically twofold: (1) he says he has been suffering from repeated nosebleed but has not been having proper medical treatments while being detained by the Director of Immigration (“the Director”), he thus hereby applies for “bail” for health reasons, and (2) he has a pending refugee claim that is still being processed by the United Nations High Commissioner for Refugees (“UNHCR”) and thus should not be detained.

4.The relevant facts regarding the applicant’s detention have been summarised and set out by Ms Parwani in her skeleton at paragraph 6 to effectively paragraph 23.  For convenience, I have reproduced this part of the skeleton in the Appendix to this judgment.  Subject to a few comments made by the applicant, he is not disputing this factual background.  I will make further reference to his comments later.

5.Of course, what has been set out in the skeleton cannot be taken as proper evidence yet, but the Director through Ms Parwani has, for the present purpose, undertaken that he would through his officer file an affirmation or affidavit by 4:30pm next Wednesday to confirm everything that has now been set out in these paragraphs.

6.In the premises, for the purpose of disposing of today’s application, I have adopted this factual matrix in this judgment as undisputed, subject to the comments Mr Nasser has made.  This judgment should therefore be read in the context that if it turns out that what has been set out in this skeleton as the factual matrix cannot be properly confirmed by the above-mentioned affirmation, the court will revisit this decision again.

7.Looking at the factual matrix, in my view, there cannot be any suggestions that the detention of Mr Nasser is in any way unlawful.  As set out in Ms Parwani’s skeleton, the detention has been properly and lawfully made under s 32(3A) of the Immigration Ordinance (Cap 115) (“the Ordinance”), and given that Hong Kong is not a signatory to the Refugee Convention, the mere fact that there is a pending refugee claim with the UNHCR does not render such detention unlawful.

8.In this regard, the Director has further confirmed through Counsel in the skeleton that it is part of his department’s good administrative practice that they will not repatriate the applicant back to his home town until his refugee claim has been properly disposed, so there is no risk at the moment that the applicant will be deported back to his home town before the determination of the refugee claim by the UNHCR.

9.I further accept Ms Parwani’s submissions that, in light of the factual matrix as set out in paragraphs 16 and 17 of the Appendix, the Director is justified to form the view that the repatriation of Mr Nasser to his home country can properly be made within a reasonable time.  Therefore, the present detention of the applicant cannot be said to have been made for an unduly long period of time or that there is no reasonable prospect that he could be properly deported in the near future.

10.I now turn to the applicant’s allegation that he has not been receiving proper medical treatments regarding his nosebleeds while in detention. Even if the allegations of poor medical treatments bear some truth, they have nothing to do with the legality of the detention[1]. That therefore does not render his application for habeas corpus a proper one, because the complaint about poor medical treatments cannot show that the detention itself is unlawful.

11.Moreover, I have to say that looking at the relevant factual matrix (see paragraphs 21 to 22 of the Appendix), as supported by the medical certificate, I am not satisfied that the allegations have in fact been made out. These relevant facts (which are not disputed by Mr Nasser) tend to show that Mr Nasser has been receiving proper medical treatments.

12.I now deal with the few comments made by Mr Nasser on the factual matrix. 

13.First, regarding the matters concerning the day or the events that happened during his arrival in Hong Kong when he was refused entry and the Immigration Department was trying to deport him (see paragraph 6 of the Appendix), Mr Nasser does not deny that he was fighting with the immigration officers and was refusing to go back and perhaps acted with some force.  He however explains that he did that because his life would be in danger if he was repatriated back to his home country, and therefore he was forced to fight for his life.

14.In my view, this part of the factual matrix has no bearing on the question as to whether the present detention of Mr Nasser is lawful or not.  These parts of the facts and Mr Nasser’s explanation therefore similarly have no bearing on my above conclusion that the detention is a lawful one.

15.Secondly, Mr Nasser also says that the reference to his subsequent conviction on criminal damage relating to what happened at the airport is irrelevant to his present application.

16.I agree, so I have also disregarded this reference in coming to my conclusion above that the detention is a lawful one. 

17.Finally, Mr Nasser explains why he has not appealed against the refusal of the torture claim.  Basically, he says he did not at that time really know what the reason of the refusal was or what rights he had, even though he was then legally assisted under the Duty Lawyer Scheme.

18.Be that as it may, the fact still remains that he has not appealed against the refusal of the torture claim, and there is no pending torture claim at the moment.  Therefore, I do not find this explanation affecting my view that the present detention of Mr Nasser is a lawful one.

19.For all the above reasons, I am firmly of the view that the present detention of Mr Nasser is lawful.

20.I therefore refuse the application for a writ of habeas corpus. I also make no order as to costs.

The applicant appeared in person

Ms Audrey Parwani, Government Counsel, of the Department of Justice, for the 1^st and 2^nd putative respondents

Appendix

“Brief Immigration History of the Applicant

6. On 19 March 2012, the Applicant arrived in Hong Kong from Addis Ababa on the strength of his Ugandan passport.  He was refused permission to land by a Senior Immigration Officer after immigration examination on the ground that the intention of his visit was doubtful.  The Applicant was accordingly detained under section 32(1)(a) of the Immigration Ordinance, Cap 115, (“the Ordinance”) pending his removal, authorized by an immigration officer.  On the evening of 20 March 2012, an attempt was made to repatriate the Applicant by flight but the Applicant refused to board the flight at the departure gate. Removal was withheld.  On 22 March 2012, a second attempt was made to remove the Applicant.  However, the Applicant reacted emotionally, turned violent and refused to leave the Detention Quarters (Airport) to board the departure flight.  On 23 March 2012, it was reported that that the Applicant had damaged two fluorescent lights and one tissue holder inside the Detention Quarters (Airport).  The Applicant was handed over to the Airport Police for enquiry. On 26 March 2012, the Applicant was convicted of criminal damage and fined HK$6,000.  He was required to serve 14-days’ imprisonment in default of payment of the fine. 

First Detention and Removal Order

7. On 28 March 2012, the Applicant raised a claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“torture claim”) whilst he was imprisoned.  On 5 April 2012, the Applicant was discharged from prison and transferred to Castle Peak Bay Immigration Centre (“CIC”) of the Immigration Department (“ImmD”) where he was detained under section 32(1)(a) of the Ordinance as authorised by a Senior Principal Immigration Officer until 18 May 2012.  From 19 May 2012 to 11 June 2012 (“the first detention”), he was detained under section 32(2A) of the Ordinance pending the decision of the Director as to whether or not a removal order should be made.  On 11 June 2012, a removal order under section 19(1)(b) of the Ordinance was made against the Applicant and he was detained under section 32(3A) of the Ordinance pending his removal from Hong Kong.  On 14 June 2012, the Applicant was served a “Notice of Removal Order and Right of Appeal”.  The Applicant confirmed in writing of the same that he did not intend to appeal against the making of the removal order.

8.    On 15 June 2012, a review of the Applicant’s detention was conducted by ImmD.  Having considered all the circumstances of the Applicant’s case including, inter alia, whether the Applicant’s removal was going to be possible within a reasonable time, and noting that the Applicant’s torture claim was under process, the decision was made to release the Applicant from detention subject to conditions.  On 20 June 2012, the Applicant was released on recognizance under section 36(1) of the Ordinance.

UNHCR Claim and Determination of the Applicant’s Torture Claim

9. On 17 July 2012, the Applicant registered with the UNHCR to make a claim for refugee status (“refugee claim”).  On 3 September 2012, ImmD’s Torture Claim Assessment Section informed ImmD’s Clearance Section that the Applicant’s torture claim had been determined and refused.  A Notice of Determination dated 3 September 2012 and a blank Notice of Petition were served on the Applicant via the Duty Lawyer Service office on the same day.  No petition in respect of the Applicant’s torture claim has been filed within the time limit or to date.

10.By a letter of 10 September 2012 marked very urgent by fax, the Director informed the UNHCR that there was no outstanding claim impeding the removal of the Applicant (and other detainees named) and their removal was imminent.  The UNHCR was also requested to expedite the process of the Applicant’s claim and to inform ImmD of the result as soon as possible. Letters of the same content were faxed on 17 September 2012 and 24 September 2012.

The Second Detention

11. On 25 September 2012, the Applicant’s recognizance ceased when he reported to CIC.  A review of the Applicant’s detention was conducted and he was re-detained at CIC under section 32(3A) of the Ordinance as authorised by an Assistant Director of Immigration (“the second detention”).  The decision to re-detain the Applicant was reached on the basis that his removal was going to be possible within a reasonable time and there was no sufficient reason to believe that the subject’s case cannot be finalized in the near future.  On the same day, the Applicant was served a “Notice to Persons in Custody” and “Notice to non-Chinese citizens in Custody”, a “Notice on Detention Policy” and “Notice of Detention” informing the Applicant of the authority, purpose and detailed grounds of his detention under section 32(3A) of the Ordinance.

12. By letters of 26 September 2012, 2 October 2012, 8 October 2012, 15 October 2012, 22 October 2012, 28 October 2012, and 1 November 2012,  the Director requested the UNHCR to expedite the process of the Applicant’s claim and to inform ImmD of the result as soon as possible.  By a letter of 1 November 2012 from the UNHCR to CIC, the UNHCR informed the Director that their staff and an interpreter would proceed to CIC on 2 November 2012 to conduct interviews with certain refugee claimants, including the Applicant.  By a letter of 3 November 2012, the Director requested the UNHCR to expedite the processing of the Applicant’s claim, noting that an interview was conducted with the Applicant on 2 November 2012.

13. On 5 November 2012, a review of the Applicant’s detention was conducted by the Director.  Having considered all the circumstances of the case, the Director decided not to release the Applicant on the ground that the Applicant’s removal is going to be possible within a reasonable time and there was no sufficient reason to believe that the Applicant’s case cannot be finalised in the near future.  A “Notice of Review of Detention” was served on the Applicant but he refused to sign to acknowledge receipt of the same.  In an interview with the Applicant on the same day, the Applicant indicated he was unwilling to return to Uganda as he wanted to wait for the result of his refugee claim.

Lawful Detention and Arrangements for Removal

14. All the events regarding the Applicant as set out above and in the Chronology attached hereto (as Annex I) demonstrate that the Applicant’s detention is lawful.  The removal order was issued by proper authority and the detention pending removal was properly authorised.

15. Given that the Applicant’s torture claim had been refused on 3 September 2012, and he had not filed any petition within 14 days of the refusal (indeed to date) and had not made any other applications which would impede his removal, the Director conducted a review of the Applicant’s release on recognizance on 25 September 2012 and decided that his continued release on recognizance was not recommended on the basis that his removal from Hong Kong was going to be possible and imminent.  A removal order had been properly issued on 11 June 2012 and his re-detention by the Director on 25 September 2012 was also properly authorised.  All relevant notices informing the Applicant of the Director’s detention policy and his rights under detention were served on the Applicant.

16. Following refusal of the Applicant’s torture claim, the Director had promptly moved towards the Applicant’s removal.  The Director wrote repeatedly to urge the UNHCR to expedite the process of the Applicant’s refugee claim.  Given that the Applicant had a valid travel document, on 1 November 2012, the Director made a request for funding to procure an air-ticket to facilitate the proposed departure of the Applicant.  On 5 November 2012, the purchasing order for procurement of air-ticket was issued. 

17. During the Applicant’s detention, the Director had conducted regular reviews of the Applicant’s detention and it was decided after each review that his removal within a reasonable time was possible.  At each stage of the process, there was nothing which indicated to the Director that the removal of the Applicant within a reasonable time was not possible. 

The Applicant’s Grounds of Challenge

Refugee Claim

18. Firstly, the Applicant’s ground about his UNHCR case can be dealt with shortly. The Director has repeatedly urged the UNHCR to expedite the processing of the Applicant’s refugee claim.  In light of the UNHCR’s interview with the Applicant on 2 November 2012, it is believed that the Applicant’s case can be finalised in the near future.

19. Further, given that Hong Kong is not a signatory to the Refugee Convention, the fact that an Applicant has an outstanding refugee claim with the UNHCR does not automatically oblige the Director to withhold execution of a properly authorised removal order, although that has invariably been the case as part of the good administrative practice adopted by the Director.

Release from Detention for Alternative Medical Treatment

20.In the Applicant’s Affirmation, he has stated, inter alia, the following about his health:

i. He suffers from frequent nose-bleeds;

ii. He was taken to hospital on 21 September 2012 due to a nose-bleed

iii. During his current detention which commenced on 25 September 2012, the Applicant was taken to a hospital outside CIC for an X-ray on his skull; and

iv. During his current detention, there has been almost no medical attention given to him to treat his nose-bleed apart from ice-bags to put on his head.

21. In respect of the Applicant’s claim in paragraph 20(ii) above, as this had purportedly occurred during the Applicant’s release on recognizance, the Director has no information in this regard and the burden is on the Applicant to furnish evidence in support of his claim(s).  As regards the Applicant’s complaint that he was suffering from frequent nose-bleeds and the lack of medical treatment given to the Applicant during his current detention, these contentions are unfounded.  According to the medical report on the Applicant’s health during his second detention prepared by a medical officer of CIC, Dr Tan Jun Choon, dated 7 November 2012 (attached hereto as Annex II), the Applicant’s frequent complaint of nose-bleeds during his second detention was not borne out by the facts and, to the contrary, he was given proper medical attention and treatment at all material times. 

22. Any purported discomfort or complaint about his health appears to be self-induced.  On 26 September 2012 and 30 September 2012, the Applicant’s blood pressure was elevated because he was found to have missed taking his medicine frequently.  As to the Applicant’s complaints regarding his nose-bleed on the morning, afternoon and evening of 7 October 2012, no evidence of blood clot inside his nostril or blood strains on paper or cloth could be found.  Medication to stop bleeding was prescribed.  Again on 8 September 2012 and 9 September 2012, 11 October 2012, the Applicant complained of nose-bleeding and showed with blood stains on his clothes and a towel but no evidence of bleeding or blood clot was found inside his nostril. On 9 September 2012, the Applicant was sent for a consultation in the Accident and Emergency unit of Tuen Mun Hospital (“Tuen Mun Hospital”) which found no bleeding and an X-ray confirmed no obvious fracture.  Medication was again prescribed.  Again on 15 October 2012 and 26 October 2012, the Applicant complained of a nose-bleed but no evidence to suggest the same was found by medical staff who attended to him.  Further, in response of a complaint of pain on 21 October 2012 by the Applicant, he was found not to have been taking his medication prescribed by Tuen Mun Hospital.

23. While the Director sets out the Applicant’s medical history during his second detention for this Honourable’s information to demonstrate that his complaint is groundless, it is submitted that in any event, the Applicant’s complaint about his health is irrelevant to the consideration of this application.  The main issue is this application is whether or not the Applicant’s second detention is lawful.  The issue of release for alternative medical treatment by way of “traditional medicine” cannot properly form the basis of this application at all.”