Bhullar Angad Singh v. Hong Kong Sar Government
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HCAL 134/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 134 OF 2014 ------------------------
Before: Hon Au J in Court Date of Hearing: 17 October 2014 Date of Judgment: 17 October 2014 Date of Reasons for Judgment: 21 October 2014 ----------------------------------------------------- R E A S O N S F O R J U D G M E N T ----------------------------------------------------- 1.This is the applicant’s application for the issue of a writ of habeas corpus, which was filed with the court in the afternoon on 16 October 2014. 2.At the court’s directions, the putative respondent appeared on 17 October 2014 and was represented by Mr Lawrance Chan of the Department of Justice. 3.After hearing submissions, I refused the application with brief reasons. I also said I would provide a more detailed written reasons later. This is what I now do. THE FACTS 4.The applicant is an Indian national. He last sought to enter Hong Kong on 18 May 2014 from Macau. He then lodged (for the second time – see below) a non-refoulement claim, saying that his life is in danger if he is to be returned to India. 5.He was refused entry on 19 May by the Director of Immigration (“the Director”) and has since been detained. 6.The Director has sought to promptly process the applicant’s non-refoulement claim under the Unified Screening System after it has been lodged. However, the applicant has repeatedly failed to attend the interviews arranged by the Director for the purpose of processing and determining his non-refoulement claim. There were two occasions where his legal representative assigned under the Duty Lawyer Scheme was unavailable at the arranged interview time. There were also a number of other occasions where the applicant claimed to be feeling unwell and thus was unable and refused to proceed with the interviews as arranged. For the present purpose, the Director has produced copies of medical examination records showing that the applicant was certified (after claiming to be unwell) to be in satisfactory physical and mental condition and fit (or should be fit) for attending interviews. 7.Be that as it may, the fact is that the applicant has up till the date of this hearing not properly attended and completed any of these interviews because of these reasons. 8.Further, the relevant facts leading to and regarding the applicant’s detention have been helpfully summarised and set out by Mr Chan in the Chronology prepared by him for the hearing. This has been interpreted to the applicant before the hearing, and he has confirmed to this court that he does not dispute those facts set out in the Chronology. Thus, for convenience, I have annexed the Chronology to this judgment as part of the factual background under this application. 9.The Director through Mr Chan has also undertaken to file (through his officer) an affirmation or affidavit by Wednesday (22 October) to confirm everything that has now been set out in the Chronology and in support of his opposition to the habeas corpus application, and to exhibit all the documents that he has produced in the hearing bundle as proper evidential records. 10.In the premises, for the purpose of disposing of the habeas corpus application, I have adopted that factual matrix in this judgment as undisputed. This judgment should therefore be read in the understanding that if it turns out that what have been set out in the Chronology cannot be properly confirmed by the above-mentioned affirmation, the court will revisit this decision again. THE PRESENT APPLICATION 11.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. 12.In this case, there is no doubt that the Director has initial proper lawful authority to detain the applicant since 19 May 2014 under s 32(1)(a) of the Immigration Ordinance (Cap 115) (“the IO”) pending removal under s 18(1)(a) thereof. There is also no doubt that thereafter, the Director also has lawful authority to continue to detain the applicant under s 37ZK of the IO pending the final determination of his torture claim. 13.Insofar as the present application is concerned, the applicant’s only ground in support of the application (as set out in his affirmation) is basically that he has been detained for an unreasonably long period of time (some 146 days) since he has lodged his present non-refoulement claim on 18 May 2014, as there has yet to be a determination thereof. 14.I am not persuaded by the applicant’s contentions for the following reasons. 15.The legal principles governing whether a detention is unlawful as it has been made for an unreasonably long period are well established, and can be summarised as follows. 16.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[1]. 17.The Director has a discretion in respect of the continued detention of a person pending his deportation. Pending deportation means 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 in the exercise of his discretion: Mahesh Rai v Secretary for Security and the Director of Immigration (HCAL 81/2008, 21 August 2008, Hartmann J) at paragraph 12; A (Torture Claimant), supra, at paragraph 31. 18.What is reasonable is dependent on the circumstances of each case and is not to be assessed with hindsight: Mahesh Rai, supra, at paragraphs 16-17. 19.Applying these principles, it is clear to me that the period of the applicant’s detention so far cannot be said to be unreasonably long when viewed in the circumstances of the present case:
20.I therefore accept that there is ample evidence to show that the Director has intent upon removing or releasing the applicant at the earliest possible moment upon the determination of the non-refoulement claim, 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 or release the applicant within that reasonable period of time. There is thus no unlawfulness in the detention so far. 21.I therefore refused the habeas corpus application with no order as to costs. 22.I would also take this opportunity to thank Mr Chan for rendering his assistance to the court within short notice.
The applicant appeared in person Mr Lawrance Chan GC, of the Department of Justice, for the putative respondent
[1] Applied in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 (PC) and A (Torture Claimant) v Director of Immigration [2008] 4 HKLRD 752 (CA) at paragraph 27. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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