"As" v Director Of Immigration

Judgment Date03 March 2009
Citation[2009] 3 HKLRD 44
Judgement NumberHCAL10/2007
Subject MatterConstitutional and Administrative Law Proceedings
CourtHigh Court (Hong Kong)
HCAL000100A/2006 'A' v. DIRECTOR OF IMMIGRATION

HCAL 100/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 100 OF 2006

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

BETWEEN

‘A’ Applicant
and
DIRECTOR OF IMMIGRATION Respondent

AND

HCAL 10/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 10 OF 2007

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

BETWEEN

‘AS’ Applicant
and
DIRECTOR OF IMMIGRATION Respondent

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

AND

HCAL 11/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 11 OF 2007

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

BETWEEN

‘F’ Applicant
and
DIRECTOR OF IMMIGRATION Respondent

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

AND

HCAL 28/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 28 OF 2007

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

BETWEEN

‘YA’ Applicant
and
DIRECTOR OF IMMIGRATION Respondent

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

(HEARD TOGETHER)

Before : Hon A Cheung J in Court

Date of Hearing : 5 February 2009

Date of Judgment : 3 March 2009

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

J U D G M E N T

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

Introduction

1. By a judgment handed down on 18 July 2008 ([2008] 4 HKLRD 752), the Court of Appeal allowed the claims of the four applicants in these four sets of proceedings and declared that their detentions during the following periods under the authority of the Director of Immigration or the Secretary for Security were unlawful for violation of art 5(1) of the Hong Kong Bill of Rights. ‘A’ was detained from 14 June 2006 to 14 September 2006, ie a period of three months. ‘AS’ was detained from 14 June 2005 to 29 March 2007, ie a period of 655 days. ‘F’ was detained from 5 July 2005 to 29 March 2007, a period of 634 days. ‘YA’ was detained from 25 October 2006 to 29 March 2007, that is to say, for a period of 156 days.

2. The Court is now tasked with the assessment of damages for their unlawful detentions. Each of them claims basic or ordinary damages, aggravated damages and exemplary damages.

3. All applicants were torture claimants under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). They were all detained by the authorities pending verification of their CAT claims pursuant to s 32 of the Immigration Ordinance (Cap 115). The Court of Appeal held that the powers to detain under s 32 pending such verification were lawful under domestic law. However, they infringed art 5(1) of the Hong Kong Bill of Rights which requires that detention must not be arbitrary and the grounds and procedure for detention must also be certain and accessible. The Court of Appeal held that in the absence of a published policy as to the circumstances under which the powers to detain pending such verification would be exercised, the powers of detention under s 32 were to that extent contrary to art 5(1) of the Bill of Rights.

4. The detentions in the instant cases were, in those circumstances, declared by the Court of Appeal to be unlawful. The period of unlawful detention, in each case, commenced from the date when the relevant CAT claim was made and ended on the day when the applicant was granted bail or released on his own recognizance. Periods of detention prior to the making of the CAT claims are not in issue.

5. It is useful here to summarise the undisputed facts of each case.

Case of ‘A’

6. ‘A’ is an Algerian. He was born in Algeria on 7 February 1972 and is now 37 years old. He claims that he will be tortured if returned to Algeria on account of dealings with an Islamic fundamentalist group. He came to Hong Kong as a visitor on 6 November 2003 and was given permission to remain until 20 November 2003. On 18 November 2003, before his permission to remain expired, he made an application to the United Nations High Commissioner for Refugees (UNHCR) for recognition of his refugee status under the High Commissioner’s mandate. On the following day, he told the Director of Immigration about his application and asked for his stay to be extended, which was refused. He thus became an overstayer and went underground for a lengthy period of time, after the expiration of his permission to stay. In the meantime, he pursued his claim for refugee status with the UNHCR.

7. In February 2006, ‘A’ began to cohabit with a permanent Hong Kong resident in Sheung Wan. On 23 May 2006, the two of them filed a ‘notice of intended marriage’ with the Marriage Registry, giving notice of their intention to marry each other on 12 June 2006. Six days before they were due to get married, ‘A’ was arrested by the police for overstaying. He was detained by the Director of Immigration on the same day under s 26(a) of the Immigration Ordinance (power to detain for inquiry).

8. Whilst being detained under s 32(2A) of the Ordinance (power to detain pending a decision whether to make a removal order), ‘A’ made a CAT claim on 16 June 2006, more than two years and seven months after he arrived Hong Kong. On the following day, a removal order was made against him and he was detained by the Director pending his removal pursuant to s 32(3A).

9. ‘A’ went on a hunger strike on 4 July 2006 to protest against his detention, possible return to Algeria and separation from his fiancée. After receiving counselling, he resumed eating on 10 July 2006.

10. ‘A’ made requests for release on recognizance in June and July 2006. They were refused on 6 August 2006 by the Director, regard having had to his adverse immigration record of having gone underground and overstayed for two years and seven months and the fact that the Director intended to remove him as soon as possible.

11. On 7 September 2006, ‘A’ made an application for leave to apply for judicial review. On 13 September 2006, leave was granted and ‘A’ was granted bail by order of Hartmann J (as he then was). On the following day, he was released from detention.

12. In total ‘A’ was detained for a relevant period of three months.

13. ‘A’ has since married the woman whom he had planned to marry prior to arrest and detention.

14. On 12 September 2007, the CAT claim of ‘A’ was rejected by the Director of Immigration. On 12 October 2007, ‘A’ petitioned the Chief Executive under art 48(13) of the Basic Law against the Director’s refusal of his CAT claim. No decision on the petition has yet been reached.

Case of ‘AS’

15. The facts pertaining to the case of ‘AS’ are likewise uncontroversial. ‘AS’ is a Sri Lankan Tamil. He was born on 29 March 1975 and is now 33 years old. His claimed fears are that he will be tortured and even killed by his business partners who have connections with the Government there if he ever returns to Sri Lanka. Furthermore, by reason of his ethnicity and the fact that he has lost his Sri Lankan identity card, he fears that he will be tortured by the police if he is returned there.

16. He first entered Hong Kong from Sri Lanka on 2 March 2003 using his own passport. He departed on 8 March 2003 and returned on the following day. He was permitted to remain as a visitor until 14 March 2003. On 12 March 2003, he approached the Immigration Department for an extension of stay but the application was refused. He did not depart upon the expiry of his permission to stay but went underground. His own passport was given to an agent and was used by another for leaving Hong Kong on 16 March 2003. On 5 May 2003, ‘AS’ departed Hong Kong for the Mainland via Lo Wu using a Sri Lankan passport belonging to his cousin. He was found out by the Mainland authority and returned to Hong Kong. He was refused permission to land but was admitted to hospital for medical treatment. On 9 May 2003, ‘AS’ absconded from custody during hospitalisation. He claimed that he later obtained a passport bearing another identity and went back to Sri Lanka in July 2003.

17. Since 1 January 2004, ‘AS’ travelled to Hong Kong on a number of occasions using his own passport. He last arrived in Hong Kong on 20 September 2004. On 25 September 2004, he was intercepted by the police when he went to stand surety for his friend and was handed over to the Immigration Department for inquiries. He was then charged with two counts of immigration offences (namely, ‘transfer to another without reasonable excuse a travel document’ and ‘making a false representation to an immigration assistant’), and on his conviction, he was sentenced to 12 months’ imprisonment.

18. On 23 May 2005, three days before he served out his term of imprisonment, the Secretary for Security made a deportation order against ‘AS’. He was detained under s 32(3) following his discharge from prison on 26 May 2005. He was scheduled to be removed on 2 June 2005, but that was withheld because he had made a legal aid application three days before to challenge the deportation order. He further made a CAT claim on 6 June 2005, that is to say, more than two years and three months after he first visited Hong Kong.

19. ‘AS’ requested for release on recognizance in 2005 and 2006. Those requests were refused on the ground that in light of his previous history of being a repeated offender with a record of absconding while under detention in 2003, there existed a real risk of his absconding and re-offending.

20. On 25 January 2007, ‘AS’ made an application for leave to apply for judicial review. On 29 March 2007, five days before the substantive court hearing, ‘AS’ was released on recognizance. In total, the relevant period of detention was 655 days.

21. To complete the story, on 25 May 2007...

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