Four asylum seekers are challenging the government's right to detain torture claimants for prolonged periods.
The Immigration Department had detained two men from Sri Lanka, one from Togo and another from Algeria pending their removal from Hong Kong.
Barrister Philip Dykes SC, acting for the four, said they had been unlawfully detained because the immigration ordinance could not be stretched to cover their circumstances. He said that since there were no direct flights to Togo or Algeria, a removal order was unrealistic; the Director of Immigration could not enforce it in any country through which the asylum seekers would have to make connecting flights.
Their detentions were reliant on their removal orders, the court heard.
The Sri Lankans had been detained for 23 months and the Togolese national since October. They were released from Castle Peak Bay Immigration Centre last week. The Algerian was earlier released on bail.
All four were granted anonymity by the court. The outcome of the case, being heard by Mr Justice Michael Hartmann at the Court of First Instance, could affect 130 detained torture claimants.
Mr Dykes said that while legislation had been created to deal with Vietnamese refugees, there were no written provisions for other asylum seekers and torture claimants.
'It is necessary to tailor immigration powers to the specific circumstances of asylum seekers in order to ensure their detention is not unduly prolonged,' he said. 'How can [the Director of Immigration] on one hand say, 'I am detaining you for the purpose of removal', and on the other hand say, 'I am entertaining an application on your behalf, which if accepted by me, means I cannot remove you'. The only solution to that kind of decision-making schizophrenia is legislation.'
He also questioned the timing of the detainees' release, saying: 'As far as we can see, they have been released because of the application that has been brought.'
Lives in limbo
Number of asylum seekers pending removal 450