ALAMO, MICHAEL MANUEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1669/2023

[2023] HKCFI 2845

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1669 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 made on 26 April 2013, under section 19(1)(b) of the Immigration Ordinance Cap 115 (“Ordinance”).  He has recently been held in immigration detention since 21 July 2023 under section 32(3A) of the Ordinance, hence for a period of 110 days to date.

2.  By application filed on 18 September 2023, the Applicant applied for a writ of habeas corpus, seeking his release from detention.  I directed the Director of Immigration to file an initial response to the application, and so as to bring the matter on for hearing today.

3.  At the hearing, the Applicant has appeared in person, with the benefit of Tagalog/English interpretation.  The Director has been represented by Ms Cassandra Fung, Government Counsel, who signed the initial response.

4.  This is my Decision.

B.  Background

B.1  Immigration Status

5.  The Applicant is a Filipino male, born on 1 June 1982.  He entered Hong Kong as a visitor by his Filipino passport on 10 February 2009, with permission to stay, after extension, until 3 March 2009. However, he overstayed in Hong Kong and was arrested by the Police on 23 May 2009.

6.  The Applicant was then subject to immigration detention under various sections of the Ordinance and then released on recognizance until it ceased on 21 July 2023.  At all material times, he has had no close local connections and fixed abode in Hong Kong.

B.2    Non-refoulement Claim (“NRC”)

7.  The Applicant lodged a NRC on 21 September 2009.  It was rejected by the Director on 1 April 2015.  On 14 April 2015, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) dismissed the Applicant’s appeal/petition.

8.  On 26 January 2017, the Applicant’s NRC under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance Cap 383, by way of written signification dated 26 January 2017, was refused by the Director (“BOR 2 Refusal”).  On 22 February 2019, the Board rejected the Applicant’s petition in respect of the BOR 2 Refusal (“Dismissal”).

9.  On 24 May 2022, the Applicant’s application for leave to apply for judicial review to challenge the Dismissal was refused by the Court of First Instance (“CFI”).

10.  Subsequent attempts have been made by the Applicant to take the matter further on appeal.  On 5 December 2022, the Applicant filed an application to the Court of Final Appeal (“CFA”) for leave to appeal against the Court of Appeal’s refusal to grant leave to appeal to the CFA on 19 October 2022.  The Acting Registrar of the CFA, by way of summons dated 19 December 2022, required the Applicant to show cause by written submissions as to why that application ought not to be dismissed.  The application remains outstanding.

11.  On 17 April 2023, the Applicant submitted a written request for a subsequent claim, which was rejected by the Director on 9 June 2023. 

12.  However, under the updated removal policy which took effect from 7 December 2022, and as a result of the decision of the CFI, there is no legal impediment to removal of the Applicant arising from his NRC or any related Court proceedings.

B.3  Current Period of Detention and Review

13.  In view of the fact that the Removal Order was already issued against the Applicant on 26 April 2013, the Director considered that the removal of the Applicant had become imminent and hence subjected the Applicant to the present detention since 21 July 2023.

14.  On 20 October 2023, a recent review of detention was conducted by the Director and it was considered that continued detention was recommended and release of the Applicant on recognizance was not warranted.

B.4  Efforts at Removal

15.  Throughout the current period of detention, the only thing standing in the way of the Applicant’s removal (and thereby release) is the practical impediment arising from the lack of a replacement travel document, which ought to have been able to be obtained within one or two weeks had the Applicant cooperated in the process.

16.  Since as long ago as 2015, the Director has been making efforts on the issuance of the Applicant’s travel document.  On 20 April 2015 and 8 December 2022 (so even before the current detention), letters were sent to the Consulate General of the Philippines (“Consulate”) to request for a replacement travel document to be issued to the Applicant.

17.  Between 23 August 2023 and 25 September 2023, the Director conducted three interviews with the Applicant.  During the interviews, the Applicant expressed his unwillingness to return to the Philippines and refusal to comply with re-entry formalities.

18.  On 21 September 2023 and 17 October 2023, in relation to the Director’s seeking the assistance of the Consulate in identifying possible alternative means for issuing the Applicant’s travel document notwithstanding his uncooperative behaviour, the Consulate confirmed that the replacement travel document could be issued in one to two weeks after all re-entry formalities were met.

19.  On 18 October 2023, the Applicant refused to attend a scheduled interview with the Consulate for the application of his travel document.

20.  At the hearing, Ms Fung updated the Court with the information that a further interview with the Consulate has been scheduled for the Applicant to attend tomorrow.  Hence, she pointed out, that if the Applicant attends the interview and provides any further documents as required, he could have a travel document within one to two weeks and could be removed from Hong Kong within a short period of time thereafter.  Therefore, on that basis, removal is imminent.

C.  Applicable Principles

21.  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.

22.  As always, it is important to remember 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

23.  The Applicant’s grounds for his application, as set out in the hand-written attachment to his affidavit, can be summarised as follows:

(1)  The Applicant has been detained because of the new law (policy), even though he has hypertension.  He still has medical appointments for check-ups at Princess Margaret Hospital and also has daily mediation for his hypertension.

(2)  Being detained has a big impact on his medical issues and mental health.  Because of staying in the detention centre for a long time, anxiety and depression have developed.

(3)  The unsatisfactory food in detention centre has a big effect on his health.

(4)  He cannot go back to the Philippines because he considers that his life is still in danger.

(5)  It is unfair to force someone to go back to their home country when they do not wish to do so, simply because they are not Hong Kong residents and have no right to stay in Hong Kong.

(6)  He has been staying in Hong Kong for long time (14 years) and he has no bad or criminal record, and has always obeyed the laws of Hong Kong, and the requirements of release on recognizance.

(7)  Therefore, he has been detained for nothing, and only the High Court can remedy that problem.

24.  At the hearing, the Applicant made no further submissions, albeit that in reply he again sought to emphasise that he could not go home as there is still a threat to his life.

25.  The submissions on matters relating to the NRC – namely whether the Applicant at risk if returned to the Philippines – are not relevant to the current application.  This application is not concerned with whether the Applicant can be removed, but with whether the Applicant can continue to be lawfully detained pending his removal.  The submission that it is unfair to repatriate someone who has no right to remain in Hong Kong is also misdirected. 

26.  Save for those matters, I take the various points into account, and give them the weight that seems to me to be appropriate in the balancing exercise below.

E.  Whether Detention is Unlawful

27.  The Removal Order made against the Applicant is valid and extant.  There has been clear prima facie lawful authority to detain the Applicant throughout the current period of detention, under the Ordinance as identified above.

28.  Therefore, the question arises as to whether the overall circumstances have rendered a previously lawful detention now to be unlawful.  This is to be assessed by reference to the Hardial Singh principles, which assessment I can perform below.

29.  The starting point is to bear firmly in mind the period of detention to date – here 110 days – against which all other factors are to be weighed and balanced.

30.  I accept that the Director intends to remove the Applicant from Hong Kong at the earliest possible opportunity, and has used the power to detain only for that purpose.  HS1 is satisfied.

31.  I also accept that the Director has been acting with reasonable diligence and expedition to effect the Applicant’s removal from Hong Kong.  This is evidenced by the liaison with the Consulate to obtain a travel document, to facilitate the Applicant’s re-entry.  The only outstanding matter for the removal of the Applicant is his refusal to comply with re-entry formalities.  The Director has obtained the Consulate’s assurance in issuing the Applicant’s replacement travel document in one or two weeks after all re-entry formalities were met.  The Applicant’s refusal to attend a scheduled interview with the Consulate for replacement travel document application on 18 October 2023 appears to have been a deliberate attempt to create or continue an obstacle to his removal.  Had the Applicant cooperated, he might have been removed (and hence released from detention) some time ago.  Therefore, the delay in his removal (and hence release from detention) has been self-inflicted. I give this significant weight in the balance, under section 32(4A)(d) of the Ordinance.  HS4 is satisfied.

32.  I also note that the Director’s efforts have continued, and an interview has now been arranged for the Applicant at the Consulate tomorrow.  With respect, the Applicant would be well advised to attend that interview and cooperate in the relevant formalities for obtaining a replacement travel document.  It must be clear to the Applicant that if he continues to refuse to cooperate that will simply prolong his detention, but will not likely create unreasonableness of detention even as it is prolonged.

33.  As to the paramount factor of the risk of absconding, there seems to me to be a clear and substantial risk.  This is so, notwithstanding the Applicant’s previous record of keeping to the terms of his release on recognizance.  Time has moved on, and I accept Ms Fung’s submission that (1) the Applicant has made known his unwillingness to return to the Philippines; (2) he has refused to comply with the re-entry formalities; and (3) he lacks family ties in Hong Kong or close local connections, so that as removal is imminent he may prefer to abscond rather than be repatriated.

34.  If the Applicant were to be released but then abscond, that would defeat the very purpose of the detention and the ability to give effect to the Removal Order.

35.  On the other hand, I recognise the risk of offending appears to be rather low, and does not have any great weight in the balance.

36.  As to the Applicant’s claimed medical conditions, there is no reason to think that the Applicant would not receive appropriate medical care within the detention facility, or if necessary be escorted to attend medical appointments with the Hospital Authority.  I also note that the Applicant has not made known to the Director any claimed real adverse effects of the detention on him. 

37.  It can also be stated that there is some tension between (1) the Applicant’s claim that the detention is having an adverse effect on his health and (2) the Applicant’s refusal to cooperate in the arrangements which would hasten the end of that detention (albeit upon removal).  It is within the Applicant’s own power to hasten the end of his detention by cooperating in the process of obtaining a replacement travel document.  On what he says about his health, it might be thought that the Applicant would – as he certainly should – provide the necessary cooperation.

38.  Balancing all the various factors against the length of detention to date (110 days), I conclude that the Applicant has been and will be detained only for a period which is reasonable in all the circumstances.  HS2 and HS3 are satisfied.

39.  The detention has been, and remains, lawful.

F.  Result

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