On 13 March 2014, the Court of Final Appeal found in favour of Mr. Ghulam Rbani (FACV 15/2013) on the issue of arbitrary or unlawful detention of asylum seekers under section 32(2A) of the Immigration Ordinance.
Mr. Rbani, described as a serial over-stayer, entered Hong Kong with different passports on four occasions between 1992 and 2000. He finally overstaying for 4 ½ years before he was arrested in April 2005. He was convicted and imprisoned for immigration offenses and lodged a Torture claim on 12 September 2005.
Mr. Philip Dykes SC, acting for Mr. Rbani, advanced several arguments for contending that the Director of Immigration could not justify the imprisonment as lawful. In brief, the defense submitted that the detention was unlawful in that it violated:
– Article 5(1) of the Bill of Rights, “No one shall be subject to arbitrary arrest or detention.”
– Article 28 of the Basic Law, “No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment.”
– Article 41 of the Basic Law, “Persons in the HKSAR other than residents shall, in accordance with law, enjoy the rights and freedoms of Hong Kong residents.”
– Harial Singh principle: detention must only be for the purpose of deportation, and that it must only be for a reasonable period in the circumstances.
The Court found that given the vital importance of the right to personal freedom, there are certain implied limitations to any statutory power of administrative detention and authorities may not lawfully detain a person ‘pending removal’ for longer than a reasonable period.
It was stated that the liberty of persons can be interfered with only upon grounds that the court will uphold as lawful. Therefore, the power to detain must be exercised reasonably and in a manner which is not arbitrary, If it is not, the detention cannot be lawfully justified.
The judgment emphasized that a person made the subject of a removal order (such as asylum seekers and refugees are) may not be locked up arbitrarily while the decision whether to order removal is taken or while awaiting removal.
The court noted that, while files are being passed from one officer to another, detainees are being held in detention, deprived of their personal freedom, recognized both at common law and under Hong Kong constitutional guarantees as a fundamental right.
In this case Mr. Rbani was detained for a only 10 days more than what was justifiable in all the circumstances and awarded damages of 10,000$. It is an indictment to the entire asylum process that thousands of asylum seekers have been unlawfully detained for several months and in extreme cases for over a year.
Immigration detention must not be used as a intimidating method to force departure.
The Court of Final Appeal stated the compensation formula: asylum seekers held unlawfully at Castle Peak Bay Immigration Centre are entitled to damages for false imprisonment amounting to 1000 HK$ a day.
The government has a clear policy to deny asylum seekers’ rights and interest under Hong Kong law including constitutional rights such as liberty and freedom of movement.
It is a clear policy of the Hong Kong government to deny asylum seekers these rights and force them to have such rights affirmed and recognized only through the courts after many years of litigation and expenses.
This is a clear policy of intentionally delaying justice for vulnerable and unwelcome asylum seekers in Asia’s World City.
The Hong Kong government once again finds itself on the wrong side of constitutional law and is now looking at extraordinary amount of compensation to so many asylum seekers who were stripped of their liberty and denied compensation for such gross human rights violations.
This Court of Final Appeal judgment protects human rights by ensuring that thousands of asylum seekers, who were unlawfully detained, will receive significant amounts of cash in compensation for unjust treatment.
