On 23 December 2014, Mr. Q arrived in Hong Kong and was refused permission to land and, on the same day, lodged a non-refoulement claim (USM) with the Director of Immigration. On the following day Mr. Q was transferred to Castle Peak Bay Immigration Centre (CIC) where he was held pending the final determination of his asylum claim. He remains incarcerated there to this date.
On 3 February 2015, Mr. Q submitted his asylum form with the assistance of a duty lawyer and a screening interview was conducted on 17 February. On 24 February 2015, a review of Mr. Q’s detention was conducted and he was refused release on recognizance on two grounds: 1) his claim would be decided within a reasonable time, and 2) he did not have a fixed abode or close connections (e.g. family or friends) in Hong Kong to make it likely that he will be easily located if released.
On 9 March 2015, a Notice of Decision was sent to Mr. Q through DLS whereby he was informed of the rejection of his non-refoulement claim. On 19 March, Mr Q filed his Notice of Appeal of his USM claim with the Torture Claims Appeal Board (TCAB). On 20 and 26 March, reviews of his detention were undertaken and the detention was maintained. On 30 March, Immigration made an application for a removal order. On the same day, the TCAB directed that an oral hearing for Mr. Q’s appeal be held on 30 April 2015.
On 6 May 2015, Barrister Robert Tibbo and solicitor Chris Lucas paid Mr. Q a visit in CIC and advised that it would take a considerable time for his appeal to be decided and thus his continued detention was unlawful. Mr. Q was further advised that he might bring a civil action to claim damages for unlawful detention against the Director of Immigration. He complained that his detention breached his human rights under Article 3 and 5 of the Hong Kong Bills of Rights Ordinance.
On 8 May 2015, Mr. Q’s legal team claimed that the detention of their client was unlawful. They further demanded immediate release of the applicant lest they should make an application for a writ of habeas corpus. On 12 May, TCAB handed down its decision and dismissed Mr. Q’s USM appeal. A review of his detention was conducted and it was decided that it should continue pending the imminent execution of a removal order. On 15 May, an order for an air ticket was made to remove Mr. Q three days later. On 21 May 2015, Mr. Q lodged a habeas corpus writ at the High Court.
On 27 May 2015, the Hon. Judge Kent Yee dismissed the claim that a six-week detention was considered unlawful in Ghulam Rbaniand hence in the present case Mr. Q’s detention since December 2014 must be unlawful. The Judge also dismissed submissions on the alleged underhand approach by the Director of Immigration towards Mr. Q and the use of a removal order to foil his attempt to seek proper legal advice. The Hon. Kent Yee further rejected complaints on the alleged unfairness of the way Mr. Q’s asylum claim was handled which he indicated should be investigated elsewhere.
This judgment is not the end of the road for Mr. Q, but the beginning of a complex legal battle aimed at safeguarding his right to asylum and ensure he avails himself of all legal remedies without being detained behind the secretive walls of CIC, or hastily removed from Hong Kong.
The court action was mounted to stop Mr Q’s imminent removal and apply for his release from CIC. This week the refugee has applied for Legal Aid and for leave to apply for a judicial review of his USM rejection.
The habeas corpus writ was a first step to hold the Director of Immigration to account in his attempt to remove the refugee after holding him in detention for 5 (five) months and to prevent the refugee from remaining in Hong Kong to exercise his legal rights. The Court recognising this, granted a stay knowing the refugee will file a judicial review and damages claim. After these documents are filed, the Immigration Department will have no grounds to continue his detention and Mr. Q’s release is widely expected.
[The judgment cannot be published for anonymity reasons]