GOMEZ JEFFERSON PETALLANO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1668/2023

[2023] HKCFI 2844

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1668 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant is subject to a Removal Order, issued to him on 27 January 2015 under section 19(1)(b) of the Immigration Ordinance Cap 115 (“Ordinance”). He has been detained in immigration detention (“Present Detention”) since 16 June 2023, namely for a period of 146 days until today.

2.  By application filed on 18 September 2023, the Applicant seeks a writ of habeas corpus, to effect his immediate release from detention. I gave directions for an Initial Response – which was subsequently filed on behalf of the Director of Immigration by Ms Cassandra Fung, Government Counsel – and for the matter to come to hearing today.

3.  At the hearing, the Applicant has appeared in person with the benefit of an interpreter. Ms Fung has appeared for the Director.

4.  This is my Decision.

B.  Background

B.1  Immigration Status

5.  The Applicant is a Filipino national, who last arrived in Hong Kong on 23 September 2014 and was permitted to remain as a visitor until 7 October 2014. However, he overstayed in Hong Kong since 8 October 2014.

6.  After his arrest on 1 January 2015, as a suspected overstayer, he was transferred to the Immigration Department (“ImmD”), and he was detained under various sections of the Ordnance until released on recognizance on 4 February 2015. Release on recognizance continued until its cessation on 16 June 2023, marking the commencement of the Present Detention.

7.  The Applicant has no close connection or fixed abode in Hong Kong.

B.2  Non-refoulement Claim (“NRC”)

8.  The Applicant lodged his NRC on 1 January 2015. It was later refused by the Director on all applicable grounds on 31 January 2018.

9.  The Applicant lodged an appeal/petition with the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”), which dismissed the appeal/petition on 8 October 2018.

10.  On 16 October 2018, the Applicant filed an application for leave to apply for judicial review of the decision by the Board. On 4 August 2022, the Court of First Instance (“CFI”) refused the application.

11.  On 27 October 2022, the Applicant applied out of time for leave to appeal against that refusal. But the CFI dismissed that application on 25 November 2022.

12.  On 9 December 2022, the Applicant made a renewed application to the Court of Appeal for leave to appeal against the CFI’s decision.

13.  However, as a result of the updated removal policy which took effect from 7 December 2022, and in light of the CFI’s dismissal of the application for leave to apply for judicial review relating to the NRC, there is no legal impediment to removal of the Applicant as a result of his NRC or related court applications.

B.3  Efforts at Removal

14.  The Applicant’s Filipino passport expired on 24 July 2019. Both before and during the Present Detention, the Director has been liaising with the local Consulate General of the Republic of the Philippines (“Consulate”) with a view to securing the issuance of a replacement travel document for the Applicant.

15.  It seems that a replacement travel document could have been obtained by or for the Applicant, had he been cooperative in the process. However, the Applicant has consistently expressed unwillingness to return to his home country and has refused to cooperate with any re-entry formalities. The Applicant has done so as recently as 19 October 2023, notwithstanding expressing the understanding of the possible delay caused by his refusal to cooperate.

16.  Nevertheless, the Director has continued to seek to resolve matters by employing various measures to expedite the issuing of a travel document, and it is hoped that such a document can be obtained within a reasonable time.

B.4  Present Detention and Reviews

17.  In light of the extant Removal Order and the absence of any legal impediment to removal (following the CFI’s decision in the NRC -related proceedings), the Director considered that the Applicant’s removal had become imminent, so ceased the release on recognizance to commence the Present Detention.

18.  Throughout the Present Detention, the only obstacle to removal has arisen from the practical need to obtain for the Applicant a replacement travel document. As already indicated, it is the Applicant’s refusal to cooperate in the process which has prevented his obtaining a replacement travel document. In other words, with a full understanding of the consequences, the Applicant has chosen to seek to obstruct or frustrate his removal from Hong Kong, and hence his release from detention at the same time.

19.  During the Present Detention, the detention of the Applicant has been subject to review. At the last review of detention conducted on 31 October 2023, the Director recommended continued detention, and considered that release of the Applicant on recognizance should not be granted. The grounds for that stance included: (1) there is no legal impediment to removal of the Applicant; (2) close liaison has been maintained with the Consulate to seek to obtain a replacement travel document for the Applicant, and any delay has been directly the result of the Applicant’s refusal to cooperate on pre-entry facilities; (3) the liaison has sought possible alternative means of issuing a replacement travel document regardless of the Applicant’s attitude, so that it is believed that the re-entry facilities could be secured within a reasonable time; (4) the Applicant has no local connection in Hong Kong; (5) further, the Applicant’s continuous expression of unwillingness to return to his home country with the refusal to cooperate identifies a real possibility that, if released, he would abscond; (6) any medical concerns have been adequately dealt with, and this fact does not outweigh the factors against release of the Applicant.

C.  Applicable Principles

20.  The principles applicable on an application for writ of habeas corpus in cases with the present context are well-established. They have been summarized by the Court of Appeal in its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781. The case can be read for its full reasoning and explication of the correct approach, but at §164 the Court offered a summary of the principles which should be adopted and which can be applied as appropriate to the particular circumstances of any individual case.

21.  I bear in mind that the burden is on the respondent to an application for writ of habeas corpus to justify the continued lawfulness of the detention.

D.  Applicant’s Submissions

22.  Together with his application were certain handwritten submissions provided by the Applicant, which might be summarised as follows:

(1)  The Applicant was detained on 16 June 2023, when he went to do his usual signing on recognizance, despite showing the immigration officers his appeal documents and his insistence that he still had an ongoing case in the form of an appeal.

(2)  Continued detention is unlawful because his appeal is ongoing.

(3)  His life is still at risk in the Philippines (with some details of his claim provided), and it cannot be correct to force him back to his home country whilst his life is still at risk.

(4)  He has struggled with his health in detention, without vitamins and medicine for his eye problems and headaches.

(5)  Detention also has caused him emotional and mental suffering.

(6)  He has committed no crime in Hong Kong since his arrival in 2014.

(7)  He has regularly reported recognizance, with no record of jumping bail.

(8)  He now needs to be released as soon as possible, as he really needs to be outside detention and to stay in Hong Kong.

23.  At the hearing, the Applicant submitted various matters at some length, which might be summarised as follows:

(1)  As an explanation for his expressed unwillingness to return, the Applicant said that he has an ongoing appeal proceeding – CAMP 529/2022 – on which he is still working, and which is still to be determined. Therefore, he does not wish to return.

(2)  As an explanation for his refusal to cooperate in the re-entry arrangements, such as by failing to attend an interview at the Consulate, the Applicant made the same point. He also suggested that if he were to cooperate in obtaining a travel document, that might be used against him and frustrate his ability to follow up on his ongoing appeal.

(3)  As to the alleged lack of local ties or connections, the Applicant said that he had no family in Hong Kong, but had made many friends over the past eight years. He has provided the names and contact telephone numbers of various persons who would be prepared to stand as guarantor, if he is released on recognizance.

(4)  One of those persons is his girlfriend/fiancee, who has been “number one” in supporting him financially and otherwise. She is a foreign domestic helper who has been working in Hong Kong for five years.

(5)  As to his health, the Applicant emphasised that he was not making any complaint whatsoever. He was merely pointing out that he is worried about his worsening condition, particularly as regards his eyes and headaches, not least because of “too much thinking” about his situation.

(6)  The Applicant also stressed he had no complaint about ImmD, do a good job.

(7)  But he emphasised that in all the previous period of release on recognizance he had never failed to comply with the terms of recognizance, including as to signing.

(8)  He has also always updated ImmD with his various changes of address, necessitated because it is difficult to have a permanent address, and only rents a room where the ISS pays the rent.

(9)  He also emphasised that he had not committed any crime in Hong Kong, and had always been obedient to the laws of Hong Kong because he is aware of the consequences of violating the laws. He has not even had quarrels or disagreements.

(10)  Therefore, there is no risk of offending, and there is no risk that he would abscond.

(11)  His wish is to see his case through to the end, because there remains a threat to his life in the Philippines – for which he is gathering more evidence that he hopes to present. After the case is completed, he would accept that he could be brought into detention and would agree to leave.

24.  It is convenient to note at this point that, on this application, the Court is not concerned with the Applicant’s NRC, and whether he should or should not be permitted to remain in Hong Kong. The relevant question for consideration on this application is whether the Applicant has been lawfully detained and/or can continue to be lawfully detained, pending his removal from Hong Kong.

25.  Save for his submissions as regards his NRC, which are not relevant, I take his various other points into account in my analysis below.

E.  Whether Detention Has Become Unlawful

26.  Where there is a valid and extant Removal Order, there has throughout the Present Detention been clear prima facie lawful authority to detain the Applicant pursuant to section 32(3A) of the Ordinance. Hence the question arises as to whether the overall circumstances of detention have rendered it unreasonable, and hence unlawful.

27.  The starting point must be the period of detention to date – here 146 days, or around 4½ months – as it is against that period which the other factors are to be weighed and balanced. Ms Fung has suggested that the period is ‘non-substantial’, but I am not sure that describing it in that way is particularly helpful. Whilst it is a period which is undoubtedly less substantial than periods of detention in other cases, it is simply a period of detention which needs to be considered by reference to the other factors to be weighed and balanced on the particular circumstances of the case.

28.  I accept that HS1 is satisfied. The Director brought the Applicant into detention in light of the absence of any legal impediment to removal, and the apparent imminence of the ability to effect that removal. The Applicant has been detained solely for the purpose of his removal.

29.  Further, Ms Fung is correct when she submits that the lengthening of the Present Detention is entirely attributable to the Applicant’s own lack of cooperation. He has demonstrated a clear understanding of the possible consequences arising from that lack of cooperation in facilitating the re-entry arrangements for repatriation to the Philippines, but has nevertheless persistently expressed unwillingness to return and has repeatedly refused to cooperate on all removal arrangements, whether completing the application form, photo-taking or attending an interview with the Consulate.

30.  From the Applicant’s submissions this morning, I agree with Ms Fung that the Applicant appears to have been proceeding on a wrong understanding of – or, I think, perhaps a refusal to accept – the updated removal policy. Therefore, he is offered explanation for his unwillingness to return and his refusal to cooperate in the arrangements for that return are not valid or justified.

31.  But for the obstruction by the Applicant, a replacement travel document could have been issued by the Consulate in around two weeks following establishing his identity and after the necessary re-entry formalities are met. In other words, but for his obstruction, the Applicant could have been released from detention (albeit upon repatriation) long before this application was even issued, let alone heard. The Applicant is the author of the delay in effecting his removal, and hence his release. Like it or not, he must accept the consequence of making the conscious choice of refusing to cooperate. I give significant weight to this factor, pursuant to section 32(4A)(d) of the Ordinance.

32.  Nevertheless, the Director has been diligent in the steps taken to remove the practical obstacle, through his continued liaison with the Consulate. Ms Fung informed me this morning that a further interview has been arranged for the Applicant with the Consulate tomorrow. If he attends that interview, and cooperates with the provision of any relevant documents, it seems likely that a travel document could be obtained within 1 to 2 weeks, and removal could be effected shortly thereafter. I accept that HS4 is satisfied.

33.  I also accept that there is a real and likely not insignificant risk of absconding, in light of the Applicant’s repeated expression of unwillingness to be returned to his home country, his refusal to cooperate in the steps to effect that return, and his relative lack of family ties or close local connections. I acknowledge the strength in the Applicant’s submission that he has never previously failed to comply with the terms of his recognizance, which is a matter to his credit. However, the situation may have changed, now that realisation must be dawning that removal is imminent (on the assumption that the Applicant must understand that he should cooperate in obtaining a travel document). I also accept that there is some local connection in the sense that his girlfriend/fiancee is in Hong Kong. But, she is not a Hong Kong permanent resident who can provide real surety for the Applicant, and only one of the other four persons offered as guarantors was able to be contacted by ImmD, and discussions with him left the impression that he was not a close friend of the Applicant (though the Applicant stressed in his reply submissions that this person has known him for a long time). As I say, overall there seems to me to be a real risk of absconding. Were the Applicant to be released, but then abscond, that would frustrate the very purpose of the Removal Order, and the detention pending that removal. This is a factor of significant weight in the balance.

34.  I do agree, however, that there is little if any risk of the Applicant offending. I accept his submission that he has been aware of the consequences of violating the laws of Hong Kong, and has been careful not to do so.

35.  As to the medical conditions of the Applicant, he fairly pointed out that he was not making any particular complaint. But, in any event, there is no reason to think that appropriate care facilities are not available within the detention facilities, or from external medical assistance if needed.

36.  In all the circumstances, I accept that HS2 and HS3 are satisfied. The Applicant has been detained for a period – 146 days – that is reasonable in all the circumstances, and it cannot be said that the Director will not be able to effect removal within a reasonable period, such that he should not seek to exercise the power of detention. As Ms Fung submits, a real sense of the timescale on removal can be foreseen, where the only remaining practical obstacle to removal could be dealt with within just a couple of weeks.

F.  Result

37.  The Applicant’s application for writ of habeas corpus is dismissed, with no order as to costs.