Ibrahim Sameh and Others v. Director of Immigration

HCZZ 13/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

INTENDED ACTION NO 13 OF 2015

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J U D G M E N T
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1.The applicants applied ex parte on notice for writs of habeas corpus to be issued to the Director of Immigration requiring their immediate release from detention. The putative respondent, the Director of Immigration, has appeared on short notice to oppose the application.

2.The applications are made pursuant to section 22A of the High Court Ordinance on the basis that the applicants are being held in administrative detention by the Director without lawful justification.

3.The applicants are both Egyptian nationals who arrived in Hong Kong by air from Cairo on 12 January 2015 and immediately claimed asylum.  They were detained by airport Immigration staff, and separately interviewed.  Following this interview, the Airport Section of Immigration referred their cases to the Removal Assessment Section, for advice as to further handling.  The Removal Assessment Section responded that they were satisfied that the applicants had signified in writing their intention to seek non-refoulement protection - section 37X, Immigration Ordinance, Cap 115.

4.The applicants were formally refused permission to land in Hong Kong, on the basis that the reason for their arrival was not a genuine one.  They were held overnight at the airport and on 13 January 2015 were transferred to the Castle Peak Bay Immigration Centre (“CIC”).

5.On 14 January 2015, at the CIC, the applicants were served with a Notice of Detention under section 32(1)(a) of the Immigration Ordinance, to commence on 12 January 2015 for a period up to 12 March 2015.  That was followed by a Review of Detention purportedly amounting to a decision to consider release on recognizance, which release was refused.

6.On the same day, the applicants were served with a further Notice of Detention, under section 37ZK of the Immigration Ordinance, commencing from 1715 hours on 14 January 2015.  It appears from the Immigration file that this Notice coincided with the service of the letter and Notices relating to the assessment of the applicants’ claims for protection.

7.Each of the section 37ZK Notices gave the same “Grounds for Detention”, namely that: 

(1) “Your torture claim may be decided within a reasonable time in the foreseeable future”;

(2) “You may abscond”; and

(3) “There are no justifying circumstances in favour of your release”.

8.Non-refoulement Claim Forms (“NCF”), I am told, have been completed and lodged today.

9.It is trite that in determining the merits 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.

10.In this case, there is no doubt that the Director of Immigration has initial proper lawful authority to detain the applicants since 12 January 2015 under section 32(1)(a) of the Immigration Ordinance.

11.Insofar as the present application is concerned, the applicants’ only ground in support of the application is that the applicants have been detained for a period which is excessive, and there is no indication that the detention is about to cease.

12.I am not persuaded by the applicants’ contentions for the following reasons.

13.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.

14.The statutory power of detention is generally one which is impliedly limited to a period which is reasonably necessary for that purpose.

15.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.

16.What is reasonable is dependent on the circumstances of each case and is not to be assessed with hindsight.

17.The above legal principles can be discerned from the Judgment of Au J in Bhullar Angad Singh v Hong Kong SAR Government, HCAL 134/2014 (Date of Judgment: 21 October 2014).

18.Applying these principles, it is clear to me that the period of the applicants’ detention so far cannot be said to be unreasonably long when viewed in the circumstances of the present case.  The detention since 12 January 2015 has not been unreasonable or excessive, bearing in mind that the NCFs were only lodged today.  Further, as of today, there is nothing that can show that it is unreasonable for the Director to be under the view that the applicants’ non-refoulement claim can be determined expeditiously within a reasonable time.

19.I accept that there is ample evidence to show that the Director has intent upon removing or releasing the applicants 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 applicants within that reasonable period of time.  There is thus no unlawfulness in the detention so far.

20.I therefore refuse the habeas corpus applications with no order as to costs.  The applicants’ own costs be taxed in accordance with the Legal Aid Regulations.

Mr Peter Barnes, instructed by Vidler & Co, for the applicants

Mr Lawrence Chan GC, of the Department of Justice, for the putative respondent