D’SOUZA MARK PHILLIP GARCIA v. DIRECTOR OF IMMIGRATION

HCAL 842/2023

[2023] HKCFI 1584

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 842 OF 2023

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D E C I S I O N

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A. Introduction

1.  The Applicant has been held in immigration detention under the Immigration Ordinance Cap 115 (“Ordinance”)  since 2 June 2022, pending his removal from Hong Kong.  To the date of this hearing, the period of detention has lasted 378 days, or a little over one year.

2.  He was initially held pursuant to a power authorising detention for the purpose of enquiring whether a removal order or a deportation order should be made.  A Deportation Order was eventually issued on 26 June 2022.  Since then, he has been held under section 32(3)  pending his deportation.

3.  On 22 March 2023, the Applicant applied for writ of habeas corpus in HCAL 448/2023 on the basis that his continued detention has become unlawful by reference to the Hardial Singh principles.  That application was heard before me on 6 April 2023. By my Decision [2023] HKCFI 947 (“Judgment”)  given on the same date, I refused the application and held that the detention (which by then had lasted 309 days)  had remained lawful and would continue for a period which is lawful.

4.  This is the Applicant’s second habeas corpus application, filed on the 24 May 2023.  About two months have lapsed since his last application.  I gave directions for the Respondent to file a written response, and so as to bring the matter to today’s hearing.  The Director was represented by Mr Alvin Hor, Government Counsel from the Department of Justice (“DoJ”), who also appeared in the Applicant’s previous application.  Mr Hor is also authorised to represent the Secretary for Security who authorised the detention, albeit not identified as a Respondent.  The Applicant appeared in person.

5.  This is my Decision.

B.  Factual Background leading to the Present Detention

6.  The Judgment for the Applicant’s previous application in HCAL 448/2023 can be read in full for the factual background up to when he last appeared before me on 6 April 2023.

7.  In gist, the Applicant is a Filipino national who first came in to Hong Kong in May 2014 to become the dependent of his father who is a permanent Hong Kong resident.  But his dependent visa was only extended to January 2021, and he has been overstaying in Hong Kong since then.

8.  He was convicted of a number of crimes during his stay in Hong Kong: gambling in a gambling establishment, shoplifting, burglary, obtaining property by deception and handling stolen goods.  He completed his last imprisonment term on 2 June 2022, on which date the present immigration detention began.

C.  Developments Since 6 April 2023

9.  As said, when the Applicant last came before me, I concluded that his detention had remained and would continue for a period which is lawful.

10.  At that time, there were two obstacles in the way of the Applicant’s deportation, being (1) his judicial review application in HCAL 1438/2022 – arising from the Director’s and the Board’s refusal of his non-refoulement claim (“NRC”)  – which was pending the Court’s determination; and (2) that the Director was waiting for the Consulate General of the Republic of the Philippines to issue the Applicant a replacement travel document.  But I was persuaded by Mr Hor that both obstacles would be resolved within a reasonable period of time, which view was proved right by subsequent events.

11.  On 17 April 2023, the Applicant’s judicial review leave application was dismissed by the Court of First Instance (“CFI”).  On 4 May 2023, a replacement travel document was issued to the Applicant, with a validity period expiring on 4 August 2023.  In other words, both prior obstacles to deportation had been removed within one month of my previous Judgment.

12.  On 5 May 2023, the Director was informed that the Applicant has sought leave to appeal against the CFI’s refusal.  I am also informed by the Applicant that the application was indeed taken out on 28 April 2023 and the case reference is CACV 128/2023.

13.  But, as is now well known, the removal policy has been updated.  With effect from 7 December 2022, once a detainee’s NRC and a subsequent judicial review application has reached the stage of being rejected by the CFI, the claim will no longer be seen as an impediment to removal.  Thus, from the perspective of the Director, there has been no removal obstacles since 4 May 2023.

14.  Two repatriation operations have been scheduled since then.  The first one was scheduled on 11 May 2023.  I am told that the air ticket had been arranged.  However, the Director eventually decided to withhold this operation – as I am told – “pending interview with the Applicant and his appeal against the CFI’s dismissal decision under the Updated Removal Policy”.  The Applicant was interviewed on 19 May 2023, and he expressed unwillingness to return to his home country.

15.  Despite the Applicant’s unwillingness, a second repatriation operation has been arranged.  A flight fixed for 15 June 2023 (namely tomorrow)  has been booked.

D.  Applicable Principles

16.  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 this case.

E.  Whether Detention has become unlawful

17.  In my previous Judgment, I have considered each of the four Hardial Singh principles and concluded that all of them were satisfied as of 6 April 2023.

18.  In light of what has transpired in the two months since then, I have no difficulty in concluding that all the four Hardial Singh principles have remained satisfied.  Both removal obstacles to deportation had been removed by 4 May 2023.  Two repatriation operations had been arranged by the Director since then, though the first was not pursued.  The next removal operation is as imminent as tomorrow.  Viewing the latest development together with all the other circumstances of this case, I am satisfied that throughout the entire period of detention:

(1)  The Director has always been using his power of detention for the purpose of facilitating removal.  HS1 is satisfied.

(2)  The Applicant has been detained for a period that is reasonable in all the circumstances.  HS2 is satisfied.

(3)  There is no reason to doubt that the Director would be able to effect deportation within a reasonable period of time, that is by tomorrow.  HS3 is satisfied.

(4)  The Director has always been acting with reasonable diligence and expedition.  HS4 is satisfied.

19.  The above view has been reached after having taken into consideration the Applicant’s submissions, both oral and in writing.  I would only add the following.

20.  In the affirmation filed in support of this habeas corpus application, the Applicant exhibited 11 pages of written materials to set out his grounds.  But I am afraid that the bulk of the Applicant’s submissions are premised on two factual errors, namely that (1) a replacement passport has not yet been issued to him, and (2) the Director could not start processing his deportation unless his judicial review application arising from his NRC has been finally determined by the Court of Final Appeal.

21.  As said above, (1)  the replacement travel document has already been issued to the Applicant on 4 May 2023, and (2)  the CFI has refused the Applicant’s application for leave to apply for judicial review, and the removal policy has been changed to the effect that the Director will no longer see further proceedings subsequent to a CFI refusal as an impediment to removal.

22.  It appears that the Applicant had then not yet fully appreciated the change in the policy.  In his written submissions, references were made to the Government’s old policy prior to the amendment, that a detainee will not be removed as long as there are ongoing legal proceedings or that when the Government becomes aware that legal proceedings are about to be commence.

23.  The Applicant’s factual misunderstanding led him to the submission that his removal will not be possible within a reasonable time.  In his written materials already file, he said (sic):

Ongoing proceedings to ensure my ability to remain in Hong Kong.

There is an enormous number of outstanding applications which have not yet been determined and some even were no date has yet been fixed.

As a result, there is no visibility insight as to when my application for appeal will be heard, let alone decided.

24.  As I have emphasized in other habeas corpus applications, it is time for applicants to be disabused of the idea that they can simply prolong their stay in Hong Kong by filing into the Court applications, irrespective of their merit, and so voluminous in number as to have inevitably slowed down the processing time of the judicial system, and then to take advantage of it.  In any event, in the instant case, the Applicant’s removal is indeed imminent.

25.  His factual misunderstanding has also led him to submit that the Director could not have been using the detention power for the purpose of effecting removal, on the basis that the possibility of removal is simply not in sight.  He also submitted the consideration of HS4 – whether the Director has been acting with reasonable diligence in effecting removal – has not yet come into play.  I reject all those submissions.

26.  The Applicant also said that he was being detained for his past offences, and that the delay to his removal was not caused by his own uncooperativeness. Both suggestions are clearly incorrect.  Whilst Director is entitled to take into consideration, and has considered, the Applicant’s criminal record in considering whether to release him from detention, it is clear from the facts that the purpose of the Director was to remove him.  I have set out in my previous Judgement how he refused to surrender his passport, creating the need to obtain a replacement for him, and highlighted that his NRC was only lodged two months after he had been kept in detention and more than 7 years after he had arrived in Hong Kong.

27.  At the hearing, the Applicant submitted a letter from his father, and further written submissions.  Though he also indicated that he might make some additional submissions orally, ultimately he did not do so.  In my summary of the various points, the Applicant submitted that:

(1)  He urgently appeals to stay in Hong Kong and avoid deportation.

(2)  He has been resident in Hong Kong for many years, and Hong Kong has become his home where he has built his life which would be shattered if he were forced to leave.

(3)  He takes full responsibility for his previous violation of Hong Kong law, but his circumstances have changed and he has been a law-abiding citizen, gainfully employed.

(4)  His family and relatives are in Hong Kong or Macau, and his father is a Hong Kong resident, currently employed but in need of support and assistance.

(5)  He appeals to the Court’s sense of compassion and humanity to overlook his past mistakes, and to give him another chance and allowing to stay and be with his family.

(6)  He promises to be a law-abiding citizen and contribute to Hong Kong society in positive ways.

(7)  The refusal of his application for leave to apply for judicial review without his attending court was unreasonable. 

(8)  The appeal against that refusal is outstanding, and he will be hampered in pursuing his appeal if he is not able to obtain evidence for the appeal.  He wants to be released so as to be able to obtain more evidence for his claim.

(9)  He has filed a complaint about his previous lawyer’s failure to provide assistance for which he was paid connection with his intended claim for habeas corpus.  He says he has filed a complaint with both the Law Society and the ICAC, and that this forms an additional reason why his removal cannot be effected.

(10)  He has always told immigration officers that he does not wish to go back to his country, for the reasons that he is awaiting the final outcome of his appeal and legal proceedings are ongoing.

(11)  It cannot be said that he is uncooperative or has refused to complete the re-entry formalities as required by the Consul General of the Philippines.

(12)  He wishes to stay in Hong Kong until all his claims are completed.

28.  The letter from the Applicant’s father implored the Court to take into account the role that the Applicant plays in his life, particularly given his underlying illness (hypertension and a probable sciatica, on which he always feels pain in his knees and leg, and for which a medical certificate was attached).  The father stated that his son’s presence would be a great help to him in coping with that illness and carrying on daily life.  He wants to spend the rest of his life with his son, knowing that as a working father who did not have much time to guide and give him much attention in his younger teenage life.  As he previously said to the court, he again states that he wishes to make amends and “do it right this time”.  He expresses the view that his son has learned from past mistakes, has expressed remorse, and can now turn his life around to embrace a new and positive path.  He also repeats the point made by him previously that there is no one else from the Applicant’s immediate family in the Philippines, and that the various family numbers are anxious about the Applicant.

29.  I acknowledge those various points, but I am afraid that they do not really go to the key question to be decided in this case.  What the Applicant and the Applicant’s father are really seeking is for the Applicant not to be deported, for him to be given another chance, and for him to be allowed to remain in Hong Kong.  But whether or not the Applicant should be permitted to remain in Hong Kong is not the question that I have to decide on this application.  The Applicant is subject to a Deportation Order which remains extant and liable to be executed.  I am not dealing with any challenge to the Deportation Order, nor with any NRC, nor indeed with any general plea to clemency as might allow the Applicant to remain in Hong Kong.  The question which I have to decide is whether the Applicant has been and can continue to be held lawfully in detention, pending the deportation of the Applicant in accordance with the Deportation Order made against him.

30.  I would also add that, in so far as might be suggested that the Applicant’s complaints to the Law Society and the ICAC are suggest to raise some impediment to his removal or deportation, I do not agree.  Similarly, I see no reason why the approach taken to his attempted judicial review of the Board’s refusal of his NRC should identify any further impediment to his removal or deportation.

31.  I accept that a one-year period of detention is a substantial period.  But, overall, weighing that period against all the factors and circumstances of this case, including he will be removed tomorrow and thus very soon regain his liberty by being released from detention (albeit in the Philippines), I am satisfied that the detention has remained and will remain or continue for a period which is lawful.

F.  Result

32.  For these reasons, I dismiss the Applicant’s application for a writ of habeas corpus.

33.  I make no order as to costs.