RUZ ESMIRALDE NAGUIMBING v. IMMIGRATION DIRECTOR

HCAL 1382/2023

[2023] HKCFI 2384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1382 OF 2023

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DECISION

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A.  Introduction

1.  The Applicant is the subject of a Removal Order a Deportation Order made on 11 June 2015 and 19 October 2018 respectively. He has been held in immigration detention since 23 May 2023. To the date of hearing, the period of detention has lasted 120 days, or about 4 months.

2.  On 9 August 2023, he applied for writ of habeas corpus seeking his immediate release from detention. On 21 August 2023, I gave leave for the respondent to file a written response, and the necessary directions to bring the matter to today’s hearing.

3.  At the hearing, the respondent Director was represented by Ms Celina Lam, Government Counsel from the Department of Justice (“DOJ”). Ms Lam said she was also authorised to represent the Secretary for Security who was also involved in making the decisions leading to the present detention, albeit not named as a respondent by the Applicant. The Applicant appeared in person with the benefit of an English/Tagalog interpreter.

4.  This is my Decision.

B.  Immigration Status

5.  The Applicant is a Filipino national born in 1977. He originally entered Hong Kong lawfully as a visitor but he unlawfully overstayed beyond the limit of stay granted to him. Counting from November 2013, he has been staying in Hong Kong for almost a decade.

6.  The decade-long unlawful stay was tolerated until fairly recently because the Applicant lodged a non-refoulement claim (“NRC”) before he was removed. Until December 2022, the removal policy then adopted by the government was that an NRC claimant would not be removed as long as his NRC or related legal proceedings were still ongoing. Thus, the effect of the Applicant’s NRC and related proceedings was to prevent his being removed from Hong Kong pending the final resolution of those proceedings.

7.  Under the Government’s removal policy implemented since December 2022, a claimant’s NRC related proceedings would cease to be a removal obstacle once it has reached the stage of being rejected or dismissed by the CFI.

8.  There is no need to delve into the details of the procedural history of the Applicant’s NRC or related proceedings. Suffice to note that these proceedings eventually ceased to impede the Applicant’s removal on 16 January 2023, on which date the Court of First Instance (“CFI”) dismissed his application for leave to judicially review earlier administrative decisions rejecting his NRC.

9.  Against such background, the Director has detained the Applicant under section 32(3) of the Immigration Ordinance, Cap 115 (“Ordinance”) since 23 May 2023. Section 32(3) permits the detention of a person against whom a deportation order has been issued pending his removal from Hong Kong.

C.  Criminal Record & Absconding Record

10.  The Director placed some emphasis on the Applicant’s absconding and criminal record to argue that the Applicant should continue to be detained under section 32(3) pending his removal, rather than being released from detention.

11.  I think it fair to say that the Applicant’s criminal record is not the most serious amongst NRC claimants seeking a writ of habeas corpus that this Court has seen recently. In April 2015, the Applicant was convicted of shoplifting and fined HK$1000. In May 2015, he was sentenced to 5 weeks’ imprisonment for breach of conditions of stay. In October 2017, he was sentenced to 4 months’ imprisonment for possession of a dangerous drug.

12.  On the other hand, his 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.

13.  I take the following summary of absconding history from Ms Lam’s submissions:

(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.

14.  His last arrest by the police led to the present immigration detention from which he seeks release in the present application.

D.  Steps towards Removal

15.  When he was taken into custody by the Director on 23 May 2023, his NRC proceedings were no longer a removal obstacle under the new removal policy. The only obstacle standing in the path of removal was his expired Filipino passport which needed replacement.

16.  The Director had already started liaising with the Consulate General of the Philippines years before the present detention, in December 2017. By March 2018, the Consulate had already confirmed that it would issue a travel document to the Applicant.

17.  After the Applicant had been taken into custody, the Director conducted various interviews with him to ascertain his willingness to return. The Applicant consistently indicated unwillingness to return. He also refused to go through the usual procedures necessary for the issuance of a replacement travel document to him, such as the filling in of a re-entry application form or taking photos.

18.  In any event, the Director was able to secure what Ms Lam called ‘special assistance’ from the Consulate, which issued a replacement passport to the Applicant on 17 August 2023. The passport is valid until 18 November 2023.

19.  On 22 August 2023, the Director bought the Applicant a seat on a flight destined to Manila, fixed for 20 September 2023.

20.  As it now stands, there is no removal obstacle to the imminent removal, which is only one day away, except this habeas corpus application.

E.  Applicable Principles

21.  In its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781, the Court of Appeal addressed the principles to be applied in a case such as the present. 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.

F.  The Applicant’s Submissions

22.  Exhibited to the Applicant’s supporting affirmation are two sets of hand-written notes. The first set contains legal principles which perhaps the Applicant considered as being applicable to this habeas corpus application, but without really identifying how they could be helpful to his case.

23.  The second set contains his attempt to apply the Hardial Singh principles to the facts of his own case. I can summarise his points as follows:

(1)  He has been detained since 21 May 2023 and has lost about 70 days (at that time) of his liberty in administrative detention.

(2)  He cannot be removed within a reasonable time due to his ongoing judicial review proceedings and that a travel document has not yet been issued to him. Since he could not be removed within a reasonable and foreseeable timeframe, it also means that it cannot be said that he is being detained for the purpose of his removal.

(3)  Regarding his replacement travel document, he said the lack of progress is not due to uncooperativeness on his part. The immigration officers did not ask him to fill in an application form or make him do so. Therefore, it cannot be argued that the delay in his removal is due to his own uncooperativeness.

(4)  He referred to his judicial review proceedings in HCA 23/2019. Although his application was rejected in January 2023, he had filed a summons which has not yet been listed for hearing. Even if the Court is to reject the summons, he can still appeal to the Court of Final Appeal. Due to the large volume of cases pending decisions of the courts, he does not believe that his case could be finalised within a reasonable time.

(5)  As to the risk of his reoffending and absconding, he said there is always some risk that something may happen in the future, no matter how little the risk is. It can easily lead to abuse of power if the Director can simply continue to detain him by taking a box in a form saying that he may reoffend or abscond. The risk of his absconding is very low.

(6)  He admitted that he had committed criminal offences in the past. But he had served his sentence. Part of the function of the criminal justice system is rehabilitation. To say that there is risk of his reoffending is to distrust the system’s capability to rehabilitate.

(7)  He has a wife and 5 children in Hong Kong. The administrative detention has deprived him of his long overdue opportunity to reunite with his family in Hong Kong.

(8)  His wife has physical and psychological issues. It is difficult for his wife to take care of the children alone.

(9)  He wants to hide the truth from his children that their Father is now being imprisoned like a prisoner. This will affect his children negatively.

24.  The affirmation was filed on 9 August 2023 and thus was not able to take into account the fact that a replacement travel document has since already been issued to the Applicant on 17 August 2023. Apparently, the change of removal policy in December 2022 – which makes any further proceedings following the CFI’s dismissal as no impediment to removal – was also not fully appreciated by the Applicant. He did indeed issue a Summons to appeal against the CFI’s refusal out of time (by more than 6 months) on 13 July 2023. I note that Summons was dismissed on 25 August 2023.

25.  As to his family situation, I am informed by the Director that there is no marriage record between the Applicant and his ‘wife’. The ‘wife’ and the children are also all non-refoulement claimants. The ‘wife’ is subject to a deportation order and the children are now released on recognizance. All of them are expected to be removed from Hong Kong at some future point in time.

26.  At the hearing, the Applicant made further submissions by way of further written points. They can be summarised as follows:

(1)  Presenting an airline ticket to send him back to his country does not end the Applicant’s and his family’s suffering, as he will not board that flight because his life is still in danger if sent back.

(2)  That is why he has made his further appeal.

(3)  He also will not leave his family behind.

(4)  His previous convictions were 6, 8 and almost 10 years ago, and so the risk of re-offending is not high. In any event, the convictions were for offences which did not involve violence. It might be said that he is a victim, not a threat.

(5)  He has been attending a rehabilitation programme, and since June or July 2022 he has provided negative urine test results for illegal substances. He has been sober for over a year, and is trying hard (with the motivation of his family) to continue this transition in his life.

(6)  He may not be a good person, but he is not a bad person. He wants to be a better man.

(7)  As a result of his rehabilitation, the Social Welfare Department have given back to the Applicant and his wife some of their children permanently, and they are in the process of getting all children back.

(8)  With the assistance of the ISS, coordination can be made to arrange reporting to the Immigration Department if he is released on recognizance.

(9)  If he were ever to fail to report again without valid reason, he accepts the Immigration Department should detain him until deportation takes effect. So the risks of absconding are no longer an issue.

(10)  He is a diabetic, and knows from his family’ as medical history that his life expectancy is not high, many close relatives having died in their 50s from complications of diabetes. He is already 46.

(11)  He wishes to spend his remaining time with his family, and be a father and husband, so as to leave them with some good memories.

(12)  He pleads with the court to end the suffering, and to release him on recognizance.

27.  As appropriate, I shall take these matters into account to my consideration below. But it is worth reiterating the point that it is no part of the current consideration as to whether or not the Applicant should be returned to his home country. That was a question which arose in the NRC, which has been determined against him. The Applicant is the subject of both a Removal Order and a Detention Order, which means that he will be removed/deported from Hong Kong. The question which arises in the current application before the Court is whether he can be lawfully detained until his removal/deportation.

G.  Whether Detention has become unlawful

28.  The Applicant has been detained under section 32(3) pursuing an extant Deportation Order at all times. There was and remains clear prima facie lawful authority for the detention.

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

30.  I can address the Hardial Singh principles broadly below.

31.  The starting point is the length of the detention – about 4 months – against which all the other factors must be weighed and balanced.

32.  I have no doubt that HS1 and HS4 are satisfied. The Director clearly intends to deport the Applicant and has been working diligently and expeditiously to this end. Such efforts were demonstrated in the efforts in obtaining a replacement travel document for the Applicant and the prompt action in scheduling a repatriation operation once the document was obtained.

33.  The only obstacle to removal when the detention began on 23 May 2023 was the practical one, relating to the passport issue. By then, the Director already secured the Filipino Consulate’s confirmation that a travel document would be issued to the Applicant. It would not reasonable to expect that the passport could and would be issued within a reasonable time. Indeed, the passport was issued in less than 3 months after the Applicant was taken into detention.

34.  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. I also acknowledge the force in the Applicant’s submission that the offences were some time ago.

35.  But his absconding record is lengthy. I agree with Ms Lam that 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 – actually emphasised directly to the Court in his statement that he would refuse to board the repatriation flight.

36.  Further, the submission by the Applicant that, if he were ever to failed to report again, he would accept that he might be detained pending deportation misses the point. Deportation is not something to be put off for an indefinite period until the Applicant might failed to report recognizance. Deportation is something to be effected once it can be legally and practically achieved. In this case, that point has been reached.

37.  I accept that credit is due to the Applicant for his attempt to turn his life around, and to recover from his previous addiction. Being sober for one year, and attending the rehabilitation programme should be a matter of personal satisfaction to the Applicant, as well as to his family. That the transition has been recognised by the partial reuniting of the Applicant and his wife with some of their children is also telling.

38.  But, I am afraid that I can give very little weight to his family circumstances in the current balancing exercise. Removal will take place tomorrow – and I am not prepared to proceed on the assumption that it will not take place as planned. The benefit to enable the Applicant to reunite with his children for one day in Hong Kong before his departure cannot outweigh the real and substantial risk of his failing to appear at the airport tomorrow.

39.  It may also be 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. The Applicant will be removed/deported. The wife will also be removed, as she is subject to a Removal Order. The children would, presumably, travel as a family with the wife. Facing these inevitable facts, 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.

40.  Indeed, it is also important for the Applicant to understand that flatly refusing to board the repatriation flight does not improve his chances of being released on recognizance, nor of reuniting with his family. Rather, it might simply prolong his detention and his separation from them. It is partly on that basis that I do not proceed in my consideration of this application on an assumption that the Applicant will refuse the repatriation flight. With respect, it seems to me to be in the interests he asserts for him to take it. Perhaps, on reflection, that point will be seen by the Applicant.

41.  I would also add that the Applicant’s apparent medical condition does not weigh heavily in the balance. There is no suggestion that appropriate medical care pending removal is not available to him. Further, it would be a mistake to think that his medical condition gives rise to any greater entitlement to remain in Hong Kong, or might somehow defeat the intended effect of the Removal Order and the Deportation Order.

42.  Overall, weighing the period of detention – around 4 months – against all the other factors including that repatriation is imminent and the Applicant should be released from detention tomorrow (albeit on repatriation), I am satisfied that HS2 and HS3 are met.

43.  In consequence, the period of detention to date has remained lawful at all times, and will remain lawful for the foreseeable future.

H.  Result

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