GHULAM RBANI v. SECRETARY FOR JUSTICE for and on behalf of the DIRECTOR OF IMMIGRATION

GHULAM RBANI v. SECRETARY FOR JUSTICE for and on behalf of the DIRECTOR OF IMMIGRATION

The Court applied Hardial Singh principles to IO s32 and held initial detention lawful but the Director failed to act with reasonable diligence and expedition after the CAT claim was known, rendering detention excessive by ten days; lack of a published policy was not established as rendering detention unlawful; BOR Art 5(1) and BL Art 28 reliance was precluded in this immigration context by HKBORO s11; appellant entitled to damages of HK$10,000 for ten days of unlawful detention and costs as ordered.

Citation
GHULAM RBANI v. SECRETARY FOR JUSTICE for and on behalf of the DIRECTOR OF IMMIGRATION
Parties
Plaintiff (appellant): Ghulam Rbani; Defendant (respondent): Secretary for Justice for and on behalf of the Director of Immigration
Court
Court of Final Appeal
Jurisdiction
Hong Kong
Judgment Date
13 March 2014
Case Number
FACV15/2013
Procedural Posture
Civil Final Appeal (court of Final Appeal) / Judgment (final Appeal)
Outcome
Appeal allowed in part
Legal Topics
Detention Powers Under Immigration Ordinance S32, Hardial Singh Principles, False Imprisonment, Publication of Administrative Policy, Convention Against Torture (cat) Claims, Bill of Rights Article 5(1), Basic Law Articles 28 and 41
Source Language
ET
Immigration Law Constitutional Law Administrative Law Human Rights Tort Law Detention Powers Under Immigration Ordinance S32 Hardial Singh Principles False Imprisonment +4 more

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Parties

Ghulam Rbani

Plaintiff (appellant)

Secretary for Justice for and on behalf of the Director of Immigration

Defendant (respondent)

Procedural Posture

Civil Final Appeal (court of Final Appeal) / Judgment (final Appeal)

Legal Issues

  1. 1 Whether detention under IO s32(2A)/(3A) was lawful
  2. 2 Application of Hardial Singh implied limits to IO s32 detention
  3. 3 Whether revocation of removal order left no legal basis for detention

Ratio Decidendi

The Court applied Hardial Singh principles to IO s32 and held initial detention lawful but the Director failed to act with reasonable diligence and expedition after the CAT claim was known, rendering detention excessive by ten days; lack of a published policy was not established as rendering detention unlawful; BOR Art 5(1) and BL Art 28 reliance was precluded in this immigration context by HKBORO s11; appellant entitled to damages of HK$10,000 for ten days of unlawful detention and costs as ordered.

Court Disposition

Appeal allowed in part

Orders

  • Appellant awarded HK$10,000 by way of damages for false imprisonment
  • Order nisi that the Director pay the appellant's costs here and below with liberty to lodge written submissions as to costs within 14 days, failing which the order nisi to stand as an order absolute