MATIBAG RONNEL PAET v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1743/2023

[2023] HKCFI 2780

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1743 OF 2023

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BETWEEN

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J U D G M E N T

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A. Application

1.  By an ex parte application filed on 28 September 2023, the Applicant applies for a writ of habeas corpus, pursuant to Order 54 rule 1 of the Rules of the High Court (Cap 4A). The Applicant thereby seeks release from the custody of the Immigration Department.

B. Background of Applicant

2.  The Applicant is a Philippines national born in 1989 who entered Hong Kong on 2 August 2008 on the strength of his Philippines passport. He was permitted to remain as a visitor for 2 days but he did not depart and overstayed in Hong Kong since 5 August 2008. He was arrested for overstaying on 26 March 2009. He was released on recognizance but he failed to report his immigration recognizance since 22 June 2012. The Applicant was arrested on 7 February 2013 and was referred to the Immigration Department and was again released on recognizance.

3.  A removal order was issued against the Applicant on 22 April 2013 (the “Removal Order”). The Applicant’s appeal against the Removal Order was dismissed on 11 October 2013.

4.  The Applicant’s recognizance ceased on 18 July 2023 and the Applicant has been detained under section 32(3A) of the Immigration Ordinance (Cap.115) (the “Ordinance”) pending his deportation from Hong Kong.

5.  The Applicant’s passport had expired in May 2013. The Applicant has a girlfriend and a child who are both non-refoulement claimants.

6.  At the time of the hearing, the Applicant has been detained for 99 days.

C. NRC related proceedings

7.  The Applicant raised a non-refoulement claim (the “NRC”) in December 2013 based on alleged fear of being killed by a man whom the Applicant had witnessed committing a murder.

8.  The NRC was rejected by the Director of Immigration (the “Director”) on 10 May 2018 (the “Decision”). The Applicant’s appeal to the Torture Claims Appeal Board (the “TCAB”) against the Decision was dismissed on 22 February 2019 (the “TCAB Decision”). The Applicant filed an application to the Court of First Instance on 6 March 2019 for leave to commence judicial review against the TCAB Decision.

9.  The Applicant’s application to the Court of First Instance for leave to apply for judicial review against the TCAB Decision was dismissed by the Form CALL-1 dated 13 January 2023 (the “JR Decision”) in HCAL 634/2019.

10.  The Applicant applied on 3 April 2023 for extension of time to appeal against the JR Decision. Such application was dismissed on 23 June 2023.

11.  The Applicant renewed his application for extension of time under CAMP 244/2023 on 5 July 2023. Such application is pending determination by the Court of Appeal.

12.  According to the updated removal policy of the Immigration Department since 7 December 2022, once a NRC claimant's subsequent legal proceedings have reached the stage of having been rejected by the Court of First Instance, the existence of further proceedings will not normally be considered by the authority as an impediment to removal.

13.  There is thus no legal impediment to the Applicant’s removal, despite his renewed application for extension of time to the Court of Appeal is pending.

D. Record of Abscondence

14.  The Applicant’s record of abscondence is as follows:

Date of Release on Recognizance	Period of Abscondence	Explanation
4 April 2009	22 June 2012 – 7 February 2013	sick
8 February 2013	31 May 2013 – 16 September 2013	Sick, lack of funds
23 October 2013	22 April 2014 – 28 October 2014	Sick, stressed
18 November 2014	10 February 2015 – 7 April 2016	Took care of daughter

E. Steps towards Removal

15.  There is no dispute that the only practical obstacle to removal is the need to obtain a travel document to replace the Applicant’s expired passport.

16.  Steps to seek re-entry for the Applicant was initiated on 28 March 2023 by a letter from the Director to the Philippines Consulate-General (the “Philippines CG”). A follow-up letter was sent on 20 July 2023 to the Philippines CG.

17.  On 18 July 2023, 30 August 2023, 12 September 2023, 21 September 2023 and 4 October 2023, interviews were carried out when the Applicant indicated unwillingness to return to the Philippines. He refused to complete the application for replacement travel document and photo-taking as part of the re-entry formalities.

18.  On 9 October 2023, a letter was sent to the Philippines CG for possible alternative means in view of the Applicant’s refusal to co-operate.

19.  On 12 October 2023, the Immigration Department called the Philippines CG to follow up on the alternative means for issue of a travel document. The Philippines CG replied that with a completed application form, passport photos and an in-person interview at the Philippines CG, a travel document will be issued in about 2 weeks.

20.  Ms Wong, Government Counsel informed the Court that in case of a detainee’s refusal to co-operate, alternative means has in the past been explored with the Philippines CG. Since the Philippines Consulate has not interviewed this particular Applicant in the past, the Immigration Department will be attending the Philippines CG to present the present case for obtaining a travel document. It is expected that a replacement travel document will be obtained in a few weeks’ time.

F. Applicable Principles

21.  In the Court of Appeal’s Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security and Another [2022] HKCA 781, the principles to be applied in an application for habeas corpus were set out in summary in §164.

22.  In considering the present application, I have adopted the said principles and have borne in mind that (1) the burden is on the Director to justify the continued lawfulness of the detention, and (2) the weight to be given to individual factors in the balancing exercise may, depending on the circumstances of the particular case, vary considerably as the period of detention lengthens.

G. The Applicant’s Submissions

23.  The Applicant has set out his grounds for application in his affirmation dated 28 September 2023. In summary, they are as follows:

(1) He has not committed any crimes since he arrived in Hong Kong in 2008.

(2) He has a wife and a daughter. His daughter was born premature and requires medical attention. His wife got sick as she could not handle the daughter’s condition alone.

(3) He cannot lead a normal life if he goes back to the Philippines.

(4) He wished to proceed with his appeal against the JR Decision.

24.  At the oral hearing, the Applicant made the following oral submissions in addition to the written submissions:

(1) He knew that some of his other friends were released on recognizance.

(2) He cannot go back to the Philippines.

25.  I shall bear these points in mind as appropriate in my analysis below.

H. Lawful Authority for Detention?

26.  The Removal Order was issued on 22 April 2013 and remains extant. The Applicant has been detained from 18 July 2023 to 24 October 2023 (99 days) under section 32(3A) of the Ordinance which permits the detention of a person against whom a removal order is in force pending his deportation from Hong Kong.

27.  Thus, there was and remains clear prima facie lawful authority for the detention.

28.  Therefore, the question arises as to whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

I. Whether Detention has become unlawful

29.  The assessment of whether an originally lawful detention has ceased to be lawful due to its continuation for an unreasonable period will be made in line with the “Hardial Singh principles”:

(1) The Secretary/Director must intend to deport the person and can only use the power to detain for that purpose (“HS1”);

(2) The deportee may only be detained for a period that is reasonable in all the circumstances (“HS2”);

(3) If, before the expiry of the reasonable period, it becomes apparent that the Secretary/Director will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention (“HS3”);

(4) The Secretary/Director should act with reasonable diligence and expedition to effect removal (“HS4”).

30.  The burden of demonstrating the detention (and the continuation of it) is lawful rests on the respondent to the application for habeas corpus.

HS1

31.  I am satisfied that the Director has detained the Applicant for the sole purpose of removal or deportation throughout the detention period. HS1 is satisfied.

HS2 & HS3

32.  The starting point is the length of the detention – about 99 days – against which all the other factors must be weighed and balanced.

33.  For the following reasons, I am satisfied that HS2 and HS3 are satisfied:

(1) There is no dispute that from the very beginning of the Applicant’s detention on 18 July 2023, the Applicant has repeatedly shown unwillingness to return to Philippines and refused to co-operate in obtaining a valid travel document to enter the Philippines by failing to complete re-entry formality for applying a travel document. The unwillingness to return was once again repeated at the oral hearing.

(2) T here is nothing to indicate that but for the Applicant’s repeated refusal to co-operate in obtaining a valid travel document, there was any further obstacle to his repatriation, hence release from detention.

(3) With the only impediment being the issue of a travel document, I am satisfied that there is sufficient prospect of removal within a reasonable timescale.

(4) In any event, I agree with Ms Wong that the length of the current detention was largely attributable to the Applicant’s self-inflicted hindrance and thus it lies ill in the mouth of the Applicant to complain about the length of the detention. He had consciously and deliberately refused to co-operate, which led to the impossibility of earlier deportation. The Applicant should not be allowed to rely on a self-imposed obstacle in arguing that the detention has become unreasonably long. This is a significant factor that has been taken into account.

(5) No risk of re-offending is relied upon.

(6) Given the Applicant’s clear attitude that he is unwilling to be repatriated and his history of abscondence in the past, the risk of absconding is real. Although the Applicant has a girlfriend and a daughter in Hong Kong, both of them are subject to removal orders and do not have the right to remain in Hong Kong. They can re-unite in the Philippines if they wish to do so.

(7) The fact that some of the Applicant’s friends have been released on recognizance is irrelevant. Each case would depend on its own facts and the Applicant has not provided any further information on such cases.

(8) Overall, weighing the period of detention – around 99 days – against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

34.  I am satisfied that HS4 is satisfied as the Director had pursued the Applicant’s deportation diligently, as shown in paragraphs 16 – 20 above.

35.  Based on the above, I am of the view that the period of detention to date has remained lawful at all times and will remain lawful for the foreseeable future.

J. Result

36.  For these reasons, I dismiss the Applicant’s application for writ of habeas corpus with no order as to costs.