ESMIRALDE NAGUIMBING RUZ v. DIRECTOR OF IMMIGRATION

HCAL 2296/2023

[2024] HKCFI 330

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2296 OF 2023

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DECISION

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1.  Introduction

1.1  The Applicant is subject to a Removal Order and a Deportation Order respectively made on 11 June 2015 and 19 October 2018. He has been held in immigration detention since 23 May 2023 pursuant to various sections of the Immigration Ordinance (“Ordinance”). As at the date of the hearing before me, the Applicant has been detained for 252 days, or some 8.5 months.

1.2  This is the second application, made on 20 December 2023, for a habeas corpus by the Applicant to obtain his release from detention. The first application, made on 8 August 2023, was heard and dismissed by Coleman J on 19 September 2023 (“Decision”)[1].

1.3  At the hearing, the Applicant appeared in person, with the benefit of an interpreter[2]. The Applicant only named the Director of Immigration (“Director”) as the Respondent. Ms Vivian Kao, Government Counsel, clarified that the Secretary for Security (“Secretary”) is also a relevant party, and the initial response was filed, and she appeared, for both the Director and the Secretary. I proceed on that basis.

2.  Background

2.1  The Applicant is a Filipino national born in 1977. The Applicant arrived in Hong Kong on 2 November 2013 as a visitor and was permitted to remain until 16 November 2013. He has since overstayed.

2.2  The Applicant first transgressed the law in 2015. In April 2015, he was arrested by the police for shoplifting and was subsequently convicted and fined HK$1,000. Shortly thereafter, in May 2015, he was convicted and sentenced to 5 weeks’ imprisonment for breach of condition of stay. In October 2017, he was sentenced to 4 months’ imprisonment for possession of a dangerous drug.

2.3  As noted at Decision §11, with which I agree, it is fair to say that the Applicant’s criminal record is not the most serious amongst NRC claimants seeking a writ of habeas corpus.

2.4  Conversely, also as noted by Coleman J, the Applicant’s absconding record stretches to a very long list. He absconded on 13 occasions in the past, for failing to report immigration recognizance, jumping police bail or failing to appear in court. On all of the occasions except three, he disappeared until he was arrested by the police, either for being a wanted person or for suspected offences. Each period of disappearance was typically months long, with the longest stretching to more than 14 months. The following is a summary of the absconding history:

(1)  He failed to report recognizance on 7 August 2015 and only resurfaced 6 months later on 5 February 2016 when he was arrested by the police.

(2)  He failed to report recognizance on 23 March 2016 and resurfaced 1.5 months later on 13 May 2016 when he was arrested by the police.

(3)  He failed to report recognizance on 12 August 2016 and the resurfaced 2 months later on 11 October 2016 when he was arrested by the police.

(4)  He failed to report recognizance on 29 November 2016 and resurfaced 2½ months later on 19 February 2017 when he was arrested by the police.

(5)  He failed to report recognizance on 12 April 2017 and resurfaced 5½ months later on 21 September 2017 when he was arrested by the police for possession of a dangerous drug.

(6)  He failed to report recognizance on 19 January 2018 and resurfaced 7½ months later on 30 August 2018 when he was arrested by the police.

(7)  On 13 August 2018, he failed to appear for Court hearing and resurfaced on 30 August 2018 when he was arrested by the police pursuant to a warrant of arrest.

(8)  On 8 March 2019, he failed to report recognizance and resurfaced in 14½ months later on 25 May 2020 when he was arrested by the police.

(9)  On 22 July 2020, he failed to appear for a Court hearing.

(10)  On 15 September 2020, he failed to report recognizance and resurfaced 8 months later on 10 May 2021 when he was arrested by the police.

(11)  On the 24 September 2021, he failed to report recognizance and resurfaced 2½ months later on 14 December 2021 when he approached the Immigration Department voluntarily.

(12)  On 12 October 2022, the Applicant jumped police bail.

(13)  On 3 January 2023, he failed to report recognizance and resurfaced 4½ months later on 22 May 2023 when he was arrested by the police.

2.5  The Applicant has a “wife”[3] and 5 children in Hong Kong. The Applicant’s “wife” is herself subject to a Deportation Order and a non-refoulement claimant caring for the two youngest children, whilst the three eldest children are also non-refoulement claimants under the care of ISS. I am told by Ms Kao the intention of the Immigration Department is to remove the whole family from Hong Kong.

2.6  Through the efforts of the Director, despite the Applicant’s refusal to provide cooperation, a travel document valid until 17 November 2023 was issued to the Applicant on 17 August 2023. The validity of the travel document, for the reasons set out below, was required to be and has since been extended to 3 April 2024.

2.7  A repatriation flight was arranged to depart on 20 September 2023, namely the day after the hearing before Coleman J. Despite the learned Judge’s exhortation to the Applicant to reflect on the wisdom on any refusal to cooperate in the repatriation arrangements (set out at Decision §§39-40), the Applicant claimed to be unwell and became emotional and refused to board his repatriation flight. As a result, the repatriation operation was cancelled.

2.8   Thereafter, on 9 October 2023, the Applicant made a request to make a subsequent non-refoulement claim (“Subsequent Claim”).

3.  The Applicant’s non-refoulement claim (“NRC”) and related proceedings

3.1  Whilst in detention (§2.2 above), on 30 May 2015, the Applicant submitted a written signification indicating his intention to lodge a non-refoulement claim. However, as a result of the Applicant’s failure to complete the necessary documentation, his NRC was deemed withdrawn on 26 November 2016.

3.2  In February 2017, the Applicant sought to reopen his NRC, but his request was rejected by the Director on 3 March 2017 (“Refusal Decision”).

3.3  His subsequent challenges against the Refusal Decision were rejected by the Torture Claims Board/Non-refoulement Claims Petition Office (“TCAB”) and the Court of First Instance (HCAL 23/2019) respectively on 8 November 2017 and 16 January 2023. His application for extension of time for filing a Notice of Appeal against the refusal decision in HCAL 23/2019 was dismissed on 25 August 2023.

3.4  As stated at §2.8 above, the Subsequent Claim was made on 9 October 2023. On 1 November 2023, the Immigration Department accorded priority to the processing of the Applicant’s request to make the Subsequent Claim. Eventually, on 20 December 2023, upon careful consideration, it was decided that the Applicant be allowed to make the Subsequent Claim. At the hearing, Ms Kao informed me that the screening interview was conducted on 26 January 2024, and the Subsequent Claim will be determined in around 2 weeks’ time. After the hearing, I was informed that the Subsequent Claim was rejected on 1 February 2024.

4.  The current detention and its reviews

4.1  At the commencement of the present detention on 23 May 2023, as there was no impediment to the Applicant’s removal, his detention was pursuant to section 32(3) of the Ordinance pending his removal from Hong Kong. Following the making of the Subsequent Claim, the Applicant has since 20 December 2023 been detained pursuant to section 32ZK pending its determination.

4.2  Throughout the current detention, the Application has all along expressed his unwillingness to return to his home country and refused to render cooperation in completing the re-entry formalities. Despite the foregoing, as noted above, a travel document was obtained and a repatriation operation scheduled but eventually aborted.

4.3  Since the abortive repatriation operation on 20 September 2023, the Applicant has continued to express his unwillingness to return to his home country. In the latest review of the Applicant’s detention conducted and endorsed on 8 January 2024, the Applicant’s continued detention was said to be justified given (1) the Subsequent Claim could be determined in a reasonable foreseeable future, (2) the Applicant’s previous criminal and absconding records, (3) the Applicant’s lack of local ties, given that his entirely family, though physically in Hong Kong, is liable to be removed and (4) his unwillingness to be returned to his home country.

5.  The applicable principles

5.1  The applicable principles are set out in Harjang Singh v Secretary for Security [2022] HKCA 781. I have in particular borne in mind the summary set out at §164 thereof.

5.2  I remind myself that the burden is on the respondent to an application for a writ of habeas corpus to justify the lawfulness of the Applicant’s detention.

5.3  Further, as has been stated and repeated in many previous decisions, an application for a writ of habeas corpus is not an opportunity for the Applicant to continue to assert the concerns underpinning his NRC and the court in his habeas corpus application will not look at the merits of any such claim.

5.4  The central question is whether the detention has become or will foreseeably become unreasonable in all the circumstances and hence unlawful.

5.5  Under section 32(4A) of the Ordinance, the detention of a person shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including (1) whether the person's removal is directly or indirectly prevented or delayed by any action or lack of action of the person, (2) whether the person poses, or is likely to pose, a threat or security risk to the community and (3) factors that directly or indirectly prevent or delay the person's removal that are not within the control of the Director.

5.6  In the circumstances of the present case, it is also apt to refer to Bains Charanjit v Hong Kong SAR Government & Anor [2022] HKCFI 3772. In Bains, the applicant had been detained for 679 days at the time of the hearing and much of the prolonged period of detention was caused by the applicant's delay in pursuing his NRC. At §§42 and 43, Coleman J said:

“ [42] Now that the Board's fresh consideration of the Applicant's NRC has been fixed for hearing on 29 December 2022 (just 10 days after the hearing of this application), I agree that it can be said that the Applicant can be removed within a reasonable period of time. The consideration is affected by the history, where the Applicant was granted leave to apply for JR on 23 June 2020, but took no steps to issue the originating summons until apparently triggered by the DOJ's warning letter in September 2021, and even then the originating summons itself was not issued until June 2022. That delay must be down to the Applicant. Thereafter, the DOJ actively sought to resolve that originating summons by a consent order, and the Director has subsequently urged the Board to expedite dealing with matters involving the Applicant. It can be expected - not least with further encouragement for expedition - that the Board will determine the Applicant's appeal/petition within say two or three months after the hearing.

[43] As to what will happen after the Board's decision, it is inappropriate to speculate. I note that the Applicant has suggested that there is bound to be some protracted legal proceedings, but it is premature to say so without seeing the Board's decision and the reasoned basis for it.”

5.7  Whilst I accept that each case must be decided on its own facts, the Court of Appeal has recently provided some guidance in Johnson Benjamin v Director of Immigration & Anor [2023] HKCA 1368. On the issues of an applicant's delay in pursuing extant legal proceedings, Au JA said:

“ [25] On the other hand, as mentioned above, the Judge rightly found that the applicant by his own conducts had not pursued with any reasonable diligence his NRC for a long period of time. By the time when he eventually seriously pursued it in December 2021 (just before he was to be released from prison), it was already 10 years since the applicant first lodged the NRC.

[26] In this respect, it is also important to note that the Judge further rightly observed and accepted at [70] and [71] of the Written Judgment that (a) the equivocation of the applicant had significantly contributed to the significant delay in the determination of his NRC, and (b) had the applicant chosen to pursue his case with some diligence, his NRC might have been resolved long before February 2022, when the immigration detention commenced.

…

[29] Once considered against these primary findings of facts and observations, in our view, it was not sensibly open to the Judge to conclude, after weighing all the relevant factors as he did, that the relevant immigration detention had become unreasonably long and thus unlawful:

(1) It is plain that the relevant relatively lengthy period of immigration detention is substantially caused and necessitated by the applicant's own unreasonable conduct and acts in significantly delaying the disposal of his NRC. In other words, had he pursued his NRC reasonably diligently, as he ought to have, he would most likely have been ready to be removed expeditiously upon his release from prison. As stated by the Judge at [31] of the Written Judgment, the Liberian Embassy would be able to issue the applicant the replacement passport in 2 weeks once all the formalities have been completed, and in fact, it was the applicant's own case that he would be able to obtain the replacement passport even quicker. In the premises, the applicant's further frustration of the replacement of his passport has therefore further compounded the delaying effect caused by his unreasonable conduct in his pursuit of the NRC.

(2) In the circumstances, the Judge's emphasis on the relatively long period of the detention in the present case as the starting and in effect the tipping point to show that the detention had become unreasonably excessive simply cannot be right.

(3) In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee's own unreasonable behaviours or conducts should not be counted or regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are other circumstances to show otherwise. This is so, as if otherwise, it would result in an absurd situation where the more unreasonably and uncooperatively a detainee behaves in seeking to frustrate or delay the procedures or process necessary to prepare for his removal, the more likely he is to be released. That cannot be the intention of the Hardial Singh principles..” (emphasis added)

6.  The Applicant’s submissions

6.1  The Applicant’s submissions as set out in his written materials may be summarized as follows:

(1)  As the Subsequent Claim remains extant, he cannot be removed from Hong Kong.

(2)  There is no reason for the Immigration Department to believe his NRC may be finalized within a reasonable time.

(3)  He has been detained since May 2023.

(4)  He is remorseful for his previous misdeeds and his last conviction was some time ago in 2017.

(5)  The ISS is his sponsor and will act as his guarantor.

(6)  His wife is under extreme stress, having to care for their 5 children without his assistance and his time being away from his children may have an impact on them psychologically.

(7)  He disagrees with the assessment that he may abscond or re(offend)

6.2  At the hearing, he handed up an 18-page document. The content of the document largely repeats the matters already put forward in his previous written material, but emphasis was placed on:

(1)  He has the right to make the Subsequent Claim and also exhaust all avenues of challenges should the Director at first instance refuse his claim.

(2)  His previous convictions did not involve violence and took place some time ago.

(3)  He is now a reformed man as he has undergone rehabilitation.

(4)  His absconding records were in part due to the fact the he was under the influence of dangerous drugs and from which he has since rehabilitated.

6.3  In addition, he pointed to the condition of detention, including being monitored constantly and poor food quality. He also urged me to take into account he has diabetes and he wishes to spend as much time with his family as possible.

7.  Analysis

7.1  Throughout the Applicant's detention period, there has been prima facie lawful authority to detain the Applicant pursuant to the identified sections of the Ordinance.

7.2  The question which falls for determination is therefore whether the detention has become unreasonable in all the circumstances, and hence unlawful. The starting point is the period of detention, namely 252 days, against which the various other factors must be weighed and balanced.

7.3  I accept that, throughout the period of detention, the intention of the Director / Secretary is to remove/deport the Applicant and that has been the only purpose of the Applicant's detention. HS1 is satisfied.

7.4  I also accept that the Director / Secretary have acted with diligence and expedition to effect the Applicant's removal. HS4 is satisfied.

7.5  The matters stated in the preceding two paragraphs are amply demonstrated by, but for the abortive repatriation operation on 20 September 2023, the Applicant would have been removed/deported from Hong Kong (and hence released from detention albeit not in Hong Kong).

7.6  Many of the matters relied on by the Applicant were considered by Coleman J in the Decision. I have considered them again in the light of the now longer period of the Applicant’s detention. Despite the fact that the Applicant has now been detained for about 4.5 months more, I find myself reaching similar conclusions as those reached by the learned Judge:

(1)  As alluded to above, it would be fair to say that the Applicant's criminal record is far from the worst amongst the habeas corpus applicants coming before this Court nowadays. There is also force in the Applicant's submission that the offences were some time ago.

(2)  However, the Applicant’s absconding record is lengthy. In my view, there is a substantial risk of absconding if the Applicant is to be released on recognizance, in view of his absconding record, as well as his expressed unwillingness to return. The risks have been amplified by the actualization of the concern then before Coleman J, resulting from the Applicant’s then statement that he would refuse to board the repatriation flight, which he in fact carried through: Decision §35. In so far as the Applicant suggests that the risk of absconding is now reduced due to his rehabilitation, as Ms Kao has pointed out, on the Applicant’s own case he has since June or July 2022 attended a rehabilitation program but he still went missing on 3 January 2023 and only resurfaced 4.5 months later on 22 May 2023.

(3)  Very little weight should be given to his family circumstances in the current balancing exercise. As trenchantly stated by the learned Judge (with whim I am in entire agreement), it is important for the Applicant to understand that his natural desire to be reunited with his wife and children is best achieved by reuniting with them outside Hong Kong. Facing the very likely fact that the entire family will eventually be removed, it seems to me that the family as a whole should recognise that the desire to be reunited can and should be achieved outside Hong Kong. It can be achieved quickly, and the Applicant can perhaps be the advance party to facilitate the necessary arrangements. It is in that way that the Applicant can satisfy his desire to spend time with his family and to be a father and husband to them.

(4)  I also find that little weight should be given to the Applicant’s health condition. There is no suggestion that appropriate medical care pending removal is not available to him.

7.7  As regards the Subsequent Claim, two matters are of note.

7.8  First, Ms Kao informed me that the Subsequent Claim was allowed to be made as the Applicant’s NRC was previously deemed withdraw. To that extent, the decision was not an acknowledgement that the Subsequent Claim is of merit but is simply a decision to afford the Applicant to have his claim substantively determined. In my view, it is plain that the Applicant must take responsibility for the delay caused by the belated pursuit of the Subsequent Claim, and the legal impediment created thereby, bearing in mind that his NRC was deemed withdrawn in November 2016 and the Subsequent Claim was only made after the abortive repatriation operation. See §§5.6 and 5.7 above.

7.9  Secondly, in so far as the further legal impediment created should (1) the Subsequent Claim is refused at first instance by the Director and (2) the Applicant brings a challenge to the TCAB and, where necessary, to the Court of First Instance, it is inappropriate to speculate at this stage: See §5.6 above. Even were the Applicant to make further challenges against the now refused Subsequent Claim (which the Applicant told me is likely), the fact remains that any further period of detention as a result, at this stage, cannot be said to be unreasonable due to the Applicant’s own delay in the pursuit of his NRC. Should further challenges be made by the Applicant, it seems to me likely that the efforts will be made to expedite the resolution of such challenges.

7.10  For the above reasons, HS2 and HS3 are also satisfied.

8.  Conclusion

8.1  I am satisfied that the Applicant's detention, and likely foreseeable future period of detention, has been and will remain lawful.

8.2  As a result, the Applicant's application is dismissed with no order as to costs.