Mar v. Director of Immigration and Another

HCAL 132/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 132 OF2013

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DECISION

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1.There is an application before me for leave to judicially review decisions of the Director of Immigration and the Torture Claims Appeals Board by the applicant. Those decisions were made in respect of the applicant’s claim under the Convention Against Torture. Whilst awaiting resolution of all his litigation the applicant had been released on recognizance by the Director of Immigration. However, he failed to report in accordance with a condition of the recognizance and so he was arrested and detained by the Director of Immigration. That took place on 2^nd February and he has now been released by the Director of Immigration in the course of this hearing today. An application for ancillary relief was made in the application for leave to judicially review the Director’s and Appeal Tribunal’s decisions in order to obtain the applicant’s release from detention and pursuant to that application I directed the Director of Immigration to bring the applicant to court today. The Director did so, he accepted service of all the documents made upon him and he instructed counsel to appear to represent him and make representations on his behalf.

2.I am satisfied that in those circumstances I have power to make a costs order against the Director and the only issue is whether I should make the order that is sought by the applicant.  In this respect I note that it is conceded that by the 6^th February at the very latest the Director of Immigration was aware that because the litigation in relation to the Convention Against Torture claim was unresolved it would not be possible in the reasonably foreseeable future for him to exercise his removal power against the applicant.  He was aware that under the Hardial Singh principles he would have to release the applicant.

3.On the assumption that the original detention was lawful as claimed by the Director in exercise of his power under section 32 (3)(a) of the Immigration Ordinance and that the Director was entitled to make enquiry and require the applicant to enter a recognizance and provide a surety in accordance with the provisions of section 36 of the Immigration Ordinance, the question is whether in taking as he did the time between 6^th and 14^th February the Director has acted reasonably.  It seems to me that the exercise of the power under section 36 should not take as long as the Director has taken in the present circumstances and I am not persuaded that he has acted it reasonably in detaining the applicant for the lengthy period of time that occurred in this case.

4.I, therefore, make a cost order against the Director.  The cost order will be that the costs of the application be to the applicant and there be a certificate for counsel with the costs to be taxed according to Legal Aid taxation.  In respect of the application the parties have agreed that the appropriate order for me to make is no order on the application and that is what I do, the parties having come to an agreement between themselves as to the terms of the applicant’s release from detention.

Ms Leona Cheung (Senior Government Counsel), instructed by Secretary for Justice, for the 1^st intended respondent

Mr Nigel Kat, instructed by Vidler & Co, assigned by DLA, for the applicant

The attendance of 2^nd intended respondent was excused