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Md Al Amin v Director Of Immigration And Another

Judgment Cited in Precedent Map Related
Vincent
Judgment Date02 March 2023
Neutral Citation[2023] HKCFI 660
Subject MatterConstitutional and Administrative Law Proceedings
Judgement NumberHCAL179/2023
HCAL179/2023 MD AL AMIN v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 179/2023

[2023] HKCFI 660

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 179 OF 2023

________________________

BETWEEN
MD AL AMIN Applicant
and
DIRECTOR OF IMMIGRATION 1st Respondent
SECRETARY FOR SECURITY 2nd Respondent

________________________

Before: Hon Coleman J in Court
Dates of Hearing: 2 March 2023
Date of Decision: 2 March 2023

_________________

D E C I S I O N

_________________

A. Introduction

1. The Applicant is a subject of a Removal Order issued under the Immigration Ordinance Cap 115 (“Ordinance”). He has been held in immigration detention since 13 June 2022 pending his removal from Hong Kong. To the date of this hearing, the period of detention has lasted 263 days, or around 8½ months.

2. On 8 February 2023, the Applicant applied for writ of habeas corpus on the basis that his detention is arbitrary and has become unlawful, by virtue of the Hardial Singh principles.

3. I gave directions for the Respondents to file an Initial Response, and so as to bring the matter to today’s hearing. At the hearing, the Applicant appeared in person with the benefit of a Bengali/English interpreter. The Respondents were represented by Mr Alvin Hor, Government Counsel. Mr Hor, albeit instructed to represent both Respondents, clarified that the Applicant’s detention was authorized by the Director under section 32(3A) of the Ordinance, and expressed the view that the Secretary for Security has “no role to play” in respect of the Applicant’s detention.

B. Factual Background

B.1 Circumstances leading to the present detention

4. The Applicant is a Bangladeshi national. He first entered Hong Kong in April 2013 and was allowed to stay as a visitor for two weeks. But he did not depart within the limit of stay and has been overstaying in Hong Kong ever since.

5. In February 2014, he was arrested by the Police for overstaying and was handed over to the Immigration Department (“ImmD”) for handling. The Applicant lodged a non-refoulement claim (“NRC”) the next day after he was handed over to ImmD.

6. Prior to the present detention, the Applicant was granted recognizance by the Director most of the time and was able to live in the community rather than being held in immigration custody. Whilst on recognizance, the Applicant was arrested for and subsequently convicted of taking employment or establishing or joining in a business, against the prohibition under section 38AA of the Ordinance. He was sentenced to 15 months’ imprisonment on 13 August 2021.

7. On 13 June 2022, he was discharged from prison after having completed his sentence. On the same day, the present immigration detention began. He was detained pursuant to the authority under section 32(3A) of the Ordinance, which empowers the Director, Deputy Director or assistant Director of ImmD to detain a person against whom a Removal Order has been issued.

8. The Removal Order against the Applicant was issued on 31 March 2014 and has remained extant.

B.2 The Applicant’s Non-refoulement claim

9. As said, the Applicant lodged a NRC in 2014. His NRC was rejected by the Director in 2017 and then by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) in 2019.

10. In April 2019, he applied for leave to challenge the Board decision by way of judicial review, in HCAL 1102/2019.

11. In August 2022, that is after the present immigration detention had already begun, the Applicant wrote to the Court asking to withdraw his application. By decision dated 6 September 2022, DHCJ Lung noted that withdrawal request and, upon the strength of Re Manik Md Mahamudun Nabi [2022] HKCA 471, concluded HCAL 1102/2019 by a dismissal.

12. In November 2022, the Applicant filed a summons asking for his leave application to be restored. In the supporting affirmation, the Applicant said that he had withdrawn the proceedings “inadvertently”. By a decision dated 3 January 2022, DHCJ Lung said that since the order for dismissing the Applicant’s leave application had already been sealed, the Court of First Instance had no jurisdiction to reinstate the leave application.

13. As it now stands, there are no outstanding legal proceedings except this habeas corpus application.

B.3 Steps taken by the Director to effect removal

14. As is common in habeas corpus applications raised by immigration detainees, the major obstacles impeding removal in this case have been the Applicant’s NRC or related legal proceedings and his expired travel document which needed replacement.

15. I have set out how the NRC and judicial review proceedings unfolded. As for travel documents, Mr Hor set out in some detail in his written submissions the Director’s efforts in securing a replacement travel document for the Applicant.

16. The efforts started before the commencement of the present detention. ImmD first contacted the Bangladesh Consulate General for such purpose on 26 November 2021, whilst the Applicant was serving his sentence for the conviction under section 38AA of the Ordinance. Then throughout 2022 to 2023, the Director has engaged in frequent written correspondence with the Consulate to seek to progress the Applicant’s re-entry application.

17. On 6 October 2022, the Consulate interviewed the Applicant and obtained the Applicant’s re-entry application form and photo. The Applicant indicated his willingness to return, which was acknowledged by the Consulate.

18. On 22 February 2023, the Consulate conducted a phone interview with the Applicant. During the phone interview, the Applicant expressed his willingness to return to Bangladesh. ImmD was advised by the Consulate that the Ministry in Bangladesh is processing the verification of the Applicant’s identity.

B.4 Review of Detention

19. During the present detention, the Applicant has been equivocal in his willingness to return to Bangladesh. He initially consistently indicated willingness. However, he changed in mind in about November 2022. But it seems that he has also expressed some indecision, and that since around mid-January 2023, he had flip-flopped back again to being willing to return.

20. The Applicant’s detention has been reviewed 4 times throughout the detention period. The last review was conducted on 10 January 2023. On every occasion, it was assessed that removal is possible within a reasonable period of time. It was initially noted that there was an ongoing judicial review which was considered to be capable of being finalized within a reasonable time. After the leave application was dismissed in September 2022, it was recognized that there was no further legal impediment. In all the 4 reviews, it was noted that the Applicant’s re-entry application into Bangladesh was in good progress. The Applicant’s criminal conviction under section 38AA and the 15 months’ sentence was relied upon for the assessment that the Applicant poses a risk to local community if released on recognizance.

C. Applicable Principles

21. In its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781, the Court of Appeal addressed the principles to be applied in a case such as the...

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