""As"" v Director Of Immigration

CourtCourt of Appeal (Hong Kong)
Judgment Date18 July 2008
Citation[2008] 4 HKLRD 752
Judgement NumberCACV316/2007
Subject MatterCivil Appeal
CACV000314/2007 ''F'' v. DIRECTOR OF IMMIGRATION

CACV 314/2007 & CACV 315/2007 &
CACV 316/2007 & CACV 317/2007
CACV 314/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 314 OF 2007

(ON APPEAL FROM HCAL NO. 100 OF 2006)

---------------------

BETWEEN

‘A’ Applicant
and
DIRECTOR OF IMMIGRATION Respondent

---------------------

AND

CACV 315/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 315 OF 2007

(ON APPEAL FROM HCAL NO. 11 OF 2007)

---------------------

BETWEEN

‘F’ Applicant
and
DIRECTOR OF IMMIGRATION Respondent

---------------------

AND

CACV 316/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 316 OF 2007

(ON APPEAL FROM HCAL NO. 10 OF 2007)

---------------------

BETWEEN

‘AS’ Applicant
and
DIRECTOR OF IMMIGRATION Respondent

---------------------

AND

CACV 317/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 317 OF 2007

(ON APPEAL FROM HCAL NO. 28 OF 2007)

---------------------

BETWEEN

‘YA’ Applicant
and
DIRECTOR OF IMMIGRATION Respondent

----------------------

(HEARD TOGETHER)

Before: Hon Tang VP, A Cheung J and Barma J in Court

Date of Hearing: 17 June 2008

Date of Judgment: 18 July 2008

_______________

JUDGMENT

_______________

Hon Tang VP (giving the of the Court):

Introduction

1. The 1984 Convention Against Tortureand other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”) applies to Hong Kong.

2. Article 3.1 of the Convention states:

“1. No State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

3. The Secretary for Security (“the Secretary”) has adopted the policy of not deporting or removing a person to a country where that person’s claim that he would be subjected to torture in that country was considered to be well-founded.

4. In Secretary for Security v Sakthevel Prabakar [2004] 7 HKCFAR 187, the Secretary accepted that the determination of a claim made under the Convention must be made fairly. The Chief Justice said:

“45. It is for the Secretary to make such a determination. The courts should not usurp that official’s responsibility. But having regard to the gravity of what is at stake, the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met. R v Home Secretary, Ex P Bugdaycay [1987] 1 AC 514 at 531 E-G. If the courts decide that they have not been met, the determination will be held to have been made unlawfully.”

5. In this appeal, each of the 4 applicants has made a claim under the Convention. Their claims have been rejected by the Secretary. The Secretary has taken about 8, 15, 17 and 22 months respectively to complete the assessment of the applicants’ claims. We are not concerned with the correctness of the Secretary’s decision, which is the subject of challenge in separate proceedings. We are concerned with the power of detention under the Immigration Ordinance, Cap.115 (“the Ordinance”), after the making of the claims. The applicants’ contention that their detention was unlawful is the subject of the present proceedings.

Background

6. The applicant ‘A’, an Algerian, and ‘F’, a Sri Lankan, were the subject of removal orders made under section 19(1)(b) of the Ordinance dated 15 June 2006 and 30 June 2005 respectively. ‘A’ made a convention claim on 14 June 2006. ‘A’ was granted leave to apply for judicial review on 13 September 2006. On the same day, he was granted bail by Hartmann J. ‘F’ made a convention claim on 5 July 2005. ‘F’ was granted leave to apply for judicial review on 5 February 2007.

7. ‘AS’ was the subject of a deportation order made by the Secretary made under section 20(1)(a) of the Ordinance dated 23 May 2005. ‘AS’ made a convention claim on 14 June 2005. ‘AS’ obtained leave to apply for judicial review on 5 February 2007.

8. ‘YA’ was refused admission into Hong Kong on arrival from Paris on 16 October 2006. He is from Togo, West Africa. He made a convention claim on 25 October 2006. A removal order was made against him under section 19(1)(b) on 1 February 2007. He applied for a writ of habeas corpuson 19 March 2007, and the writ was issued by Hartmann J on 20 March 2007. He was released on recognizance on 29 March 2007.

9. Shortly before the hearing, both ‘AS’ and ‘F’ were released on their recognizance.

Power to detain

10. The power to detain was conferred by section 32 of the Ordinance. Section 32(3) and 32(3A) are relevant. They provide:

“(3) A person in respect of whom a removal order under section 19(1)(a) or a deportation order is in force may be detained under the authority of the Secretary for Security pending his removal from Hong Kong under section 25.

(3A) A person in respect of whom a removal order under section 19(1)(b) is in force may be detained under the authority of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration pending his removal from Hong Kong under section 25.”

11. Before a person could be detained under section 32 there must first be a removal order under section 19(1)(a) or section 19(1)(b), or a deportation order made under section 20. Furthermore the person could be only detained pending his removal from Hong Kong under section 25.

12. Section 19 provides:

“19. Power to order removal

(1) A removal order may be made against a person requiring him to leave Hong Kong-

(a) by the Governor if it appears to him that that person is an undesirable immigrant who has not been ordinarily resident in Hong Kong for 3 years or more; or

(b) by the Director if it appears to him that that person-

(i) might have been removed from Hong Kong under section 18(1) if the time limited by section 18(2) had not passed; or

(ii) has (whether before or after commencement of the Immigration (Amendment) (No. 4) Ordinance 1981 (75 of 1981)) landed in Hong Kong unlawfully or is contravening or has contravened a condition of stay in respect of him; or

(iia) not being a person who enjoys the right of abode in Hong Kong, or has the right to land in Hong Kong by virtue of section 2AAA, has contravened section 42; or

(iii) being a person who by virtue of section 7(2) may not remain in Hong Kong without the permission of an immigration officer or immigration assistant, has remained in Hong Kong without such permission.

(2) (Repealed 31 of 1987 s. 16)

(3) (Repealed 88 of 1997 s. 9)

(4) A removal order made against a person shall invalidate any permission or authority to land or remain in Hong Kong given to that person before the order is made or while it is in force.”

13. As noted, ‘AS’ was the subject of a deportation order made under section 20 by the Chief Executive. Under section 20(5):

“(5) A deportation order shall require the person against whom it is made to leave Hong Kong and shall prohibit him from being in Hong Kong at any time thereafter or during such period as may be specified in the order.”

14. Section 25 provides:

“(1) A person in respect of whom a removal order or a deportation order is in force may be removed from Hong Kong in accordance with this section.

(2) The Director may give directions-

(a) to the captain of any ship or aircraft about to leave Hong Kong requiring him to remove such person from Hong Kong to a specified country;

(b) to the owners or agents of any ship or aircraft requiring them to make arrangements for the removal of such person from Hong Kong in a ship or aircraft specified or indicated in the directions to any such country.

(3) A person in respect of whom directions are given under subsection (2) may be placed under the authority of an immigration officer, immigration assistant or police officer on board any ship or aircraft in which he is to be removed in accordance with the directions.

(4) A person in respect of whom a removal order or a deportation order is in force may be removed by land to a specified country, and for that purpose may be taken in the custody of an immigration officer, immigration assistant or police officer to the place at which he is to be removed.”

Article 5 of Hong Kong Bill of Rights (“HKBOR”)

15. Mr Dykes, SC for the applicants, relied on the following paragraphs in Article 5 of HKBOR:

“(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

……

(4) Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

(5) Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”

16. Under Article 5(1), the detention must not be arbitrary, and it must be on such grounds and in accordance with such procedure as are established by law. They are separate requirements. The expressions “prescribed by law”, “established by law”, “according to law” or similar expressions mandate the principle of legal certainty and the requirement of accessibility. Shum Kwok-sher v HKSAR [2002] 5 HKCFAR 381.

17. A double test is applied:

“The detention impugned must be lawful under domestic law, and the domestic law...

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