MORENO IMELDA SAGUN v. DIRECTOR OF IMMIGRATION

HCAL 1049/2022

[2022] HKCFI 3235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1049 OF 2022

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D E C I S I O N

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A. Introduction

1.  The Applicant is currently held in immigration detention, pending her removal from Hong Kong pursuant to a Removal Order made on 26 April 2019. She is, therefore, held pursuant to section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”).  The present period of detention commenced on 18 August 2021, and to date has lasted 428 days, about 12 months.

2.  On 5 October 2022, the Applicant applied for writ of habeas corpus. The supporting affirmation identifies the following grounds:

I have been detained since 18^th August 2021 til now and it is 13 months as of now.  I am now detained under s.32 pending for removal.  I wish to stay Hong Kong until all the claims are completed.  And I conclude that my present detention is unlawful.  My present claim is at 3^rd JR.  I cannot go back to my home-country because I have real risk of my safety.  May life is in danger.

3.  I gave directions for the matter to come to today’s hearing.  Those directions included for the Respondent (“Director”) to provide an initial response to the application, and for the Applicant to have leave to file a reply to that initial response.  The initial response was filed, but the Applicant has not filed any reply.

4.  However, by letter dated 17 October 2022 – sent by post, and received by the Court on 18 October 2022 – the Applicant asked for the hearing date to be reset, on the basis that she is neither physically nor mentally prepared to stand in Court, and that she wishes to consult her legal representative who could represent her.

5.  With respect, and against the history and background traversed below, I rather thought this to be a ‘try-on’ – seeking simply to delay the inevitable.  In any event, where the Applicant has challenged her detention (even if on a misconceived basis, as to which see below), I would think it necessary to deal with the application if it is not withdrawn.  I would, therefore, have declined to reset the hearing date.

6.  At the hearing, the Applicant has appeared in person (with the assistance of a Tagalog interpreter).  When asked if she wished to say anything else in support of her request to reset the hearing date, the Applicant stated that she was present in Court and fit physically and mentally, so could go on with the hearing.  Therefore, any question of adjournment fell away and the hearing proceeded.

7.  The Director was represented at the hearing today by Ms Karen Ngai, Government Counsel, and Mr Jeffrey Fong, Government Counsel.  Ms Ngai placed reliance on the initial response/skeleton argument jointly signed by her and Mr Fong.

8.  This is my Decision.

B.      Background Facts

B.1    Immigration Status

9.  The Applicant is a Philippine national.  She last arrived in Hong Kong on 14 June 2015 to work as a foreign domestic helper.  Her contract was terminated prematurely on 12 November 2015.  Under the conditions of stay applicable to her, she had to leave Hong Kong by 26 November 2015.  But she did not do so and has been overstaying in Hong Kong ever since.

10.  As stated, she is now subject to a Removal Order issued on 26 April 2019. The Removal Order was issued under section 19(1)(b) of the Ordinance.  It has remained in force throughout.

11.  The power to detain pending removal under such a removal order is to be found in section 32(3A) of the Ordinance, which provides:

A person in respect of whom a removal order under section 19(1)(b) is in force may be detained under the authority of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration pending his removal from Hong Kong under section 25.

B.2    NCR and JR

12.  On 6 June 2016, the Applicant lodged a non-refoulement claim (“NRC’).  Her NRC was first rejected by the Director in 2017 and then by the Torture Claims Appeal Board / Non-refoulement Claims Petition office (“Board”) in 2018.  She then applied to the Court of First Instance (“CFI”) for leave to judicially review the Board’s decision.  She lost all the way up to the Court of Final Appeal (“CFA”) which refused her application for leave to appeal on 19 October 2020.

13.  She then requested to make a subsequent claim (“SubC”) which was rejected by the Director on 24 March 2021.  She came back to the CFI again, seeking leave to judicially review that refusal.

14.  On 12 August 2021, the CFI dismissed the application for leave and imposed a restricted proceedings order (“RPO”) prohibiting the Applicant from instituting or continuing with court proceedings relating to her NRC claims without first obtaining leave from the Court.

15.  Afterwards, the Applicant indicated to the Director on numerous occasions, either on her own behalf or via representatives, that she was minded to further pursue her NRC related claims or that she would seek leave from the CFI to institute fresh judicial review proceedings.  Be that as it may, no leave has been granted to her so far.

16.  Therefore, the only outstanding legal proceedings are this habeas corpus application.

B.3    Periods of Detention and Reviews

17.  From the information provided to me, it seems that the Applicant was only briefly detained for 2 days before the present detention commenced on 18 August 2021.  Otherwise, she was largely released on recognizance.

18.  That brief period of detention ran from 12 March 2018 to 14 March 2018, resulting from her failure to report recognisance.  She was due to report recognizance on 27 February 2017 but she only resurfaced and approached the Immigration Department (“ImmD”) about a year later, i.e. on 12 March 2018.  The explanation given was that she did not have the money for transportation.

19.  The present detention commenced on 18 August 2018, a few days after the CFI (1) refused leave for her to challenge the Director’s refusal of her SubC and (2) imposed of the RPO on 12 August 2018.

20.  During the currency of the present detention, the Director has reviewed her detention on 7 occasions, on 17 September 2021, 4 November 2021, 17 February 2022, 4 May 2022, 23 May 2022, 13 July 2022 and 27 September 2022 respectively.  Continued detention was recommended on each occasion, on the grounds that (a) the Applicant’s removal is going to be possible within a reasonable time; (b) she may abscond and/or (re)offend; (c) she does not have close connection or fixed abode in Hong Kong; and (d) there are no other circumstances favouring her release.

B.4    Steps towards Removal & attempted repatriation

21.  When the present detention commenced, there was no extant NRC related legal proceedings.  Nor has one been instituted since the Applicant was detained.  The remaining obstacle standing in the way of repatriation has been the need to replace the Applicant’s expired travel document.

22.  ImmD had started liaising with the Philippine Consulate since March 2021, for the purpose of obtaining a replacement travel document.  Three replacement travel documents have been issued so far.  The first one was issued on 19 August 2021, with validity expiring on 19 October 2021.  The next one was issued on 26 May 2022, with validity expiring on 26 August 2022.  The last one was recently issued on 12 October 2022, with validity expiring on 12 May 2023.

23.  Obviously the need to renew the replacement travel document was necessitated by the failure to repatriate the Applicant within the original validity period.

24.  Such a failure is not the result of lack of attempts on the part of the Director.  Repatriation was attempted during the validity of the second replacement travel document, on 13 April 2022.  That operation was aborted due to the Applicant’s resistance.  She became emotional upon arrival at the airport and refused to alight from the vehicle.  The operation was thus cancelled.

25.  The Director has continued to ascertain her view on returning and she has consistently indicated unwillingness to return.  In any event, the Director has scheduled another removal attempt and a repatriation flight back to Philippines has been arranged scheduled for 21 October 2021.

C.      Applicable Principles

26.  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.

27.  The summary is as follows:

(1)  The central question on an application for habeas corpus is whether there is, and continues to be, lawful authority for a detention.

(2)  An originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

(3)  What is a ‘reasonable time’ will therefore depend upon the circumstances of the particular case, taking into account all relevant factors.

(4)  The lawfulness of detention, or continuing detention, is subject to potential objective review by the Court.  But the review is not a review as to Wednesbury unreasonableness, or on other public law grounds.

(5)  Either continuing detention is reasonable and so lawful, or it is not.  Though the Court’s review involves an exercise of judgment and balance, that is not a discretionary decision.

(6)  Hence, the Court is the judge of, and the primary decision maker as to, the reasonableness of the detainee’s continued detention.

(7)  The burden of showing that detention is lawful lies upon the Secretary and Director.

(8)  The assessment will be made in line with the ‘Hardial Singh principles’, namely that:

(HS1) the Secretary/Director must intend to deport the person and can only use the power to detain for that purpose;

(HS2) the deportee may only be detained for a period that is reasonable in all the circumstances;

(HS3) if, before the expiry of the reasonable period, it becomes apparent that the Secretary/Director will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; and

(HS4) the Secretary/Director should act with reasonable diligence and expedition to effect removal.

(9)  Any relevant factor may affect the length of time of detention that might be regarded as reasonable.  Whilst in a specific case one or more factors may have especial weight, no factor is necessarily determinative.

(10)  A review of what might be regarded as a reasonable period of detention will include at least: (a) the length of the period of detention; (b) the nature of the obstacles which stand in the path of the Director preventing a deportation; (c) the diligence, speed and effectiveness of the steps taken by the Director to surmount such obstacles; (d) the conditions in which the detained person is being kept; (e) the effect of detention on him and his family; (f) the risk that if he is released from detention he will abscond (which may have the effect of defeating the deportation order); and (g) the danger that, if released, he will commit criminal offences.

(11)  It is helpful first to identify and have firmly in mind the period of detention to date, before balancing the various other factors and risks against that period.  This is because the weight to be given to the other factors and risks will vary as the period of detention increases in length.

(12)  Though it might seem attractive to set guideline periods or a red line (in terms of months or years) applicable to all cases, as to the circumstances in which a lawful detention becomes unreasonable and hence unlawful, no such guidelines can be set. Indeed, any attempt to do so is unhelpful.  Reference to the facts of other cases is also likely unhelpful.

(13)  Nor would it be correct to think that the longer any period of detention, the greater the scrutiny that would be applied to it.  Every deprivation of liberty pending deportation requires proper scrutiny of all the facts, in accordance with the Hardial Singh principles, which are the sole guidelines.

(14)  The risks of absconding and reoffending are of critical and paramount importance in the assessment of the lawfulness of the detention.

(15)  This is because if a person absconds, it will defeat the primary purpose for which the power to detain has been conferred, and for which the detention order was made in the particular case.

(16)  However, a very careful assessment of the risk must be made in each case, as the magnitude and potential impact of that risk will vary according to the circumstances.

(17)  The risk of absconding is distinct from the risk of committing further offences, and not dependent on that further risk.

(18)  The risk of reoffending requires its own distinct assessment, by reference to both its likelihood and seriousness.

(19)  Neither risk can justify detention of any length, as that would permit indefinite detention.

(20)  The longer the detention, the greater the risk necessary to justify it.

(21)  The Court will rigorously scrutinise the Secretary/Director’s assessment of risk on both grounds, and the weight to be given to that assessment will include consideration as to how convincing the reasoning is.

(22)  When assessing (a) the probability that removal can be effected at all and (b) the proximity of the time to removal, a real sense of the timescale likely to be involved must be identified to be able to qualify it as reasonable.

(23)  There must be a sufficient prospect of removal to warrant continued detention, having regard to and balanced against the weight of all other circumstances of the case.

(24)  As the period of detention gets longer, the greater the degree of certainty and proximity of removal would be expected to be required in order to justify continued detention.

(25)  On any appeal from a first instance decision of the Court, the appellate court will not interfere with the judge’s decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts.  The leeway given to the first instance judge is not as a result of the view that he has made a discretionary decision, but rather as a reflection that the balancing exercise can be difficult.

D.      Merits of Application

28.  Despite the reference to the unlawfulness of the present detention, there is nothing in the Applicant’s supporting affirmation which explains the alleged unlawfulness.

29.  Most of the affirmation is a plea to stay in Hong Kong which, as I have emphasised a few times in recent decisions of this sort, does not concern the question I have answer today.  The resolution of this application turns on the lawfulness of the Applicant’s present detention pending, that is until, her removal.   It is not an avenue for her to reargue her NRC claims or to seek general indulgence to stay in Hong Kong.

30.  The Applicant’s reference to a “3^rd JR” is hard to understand, unless it means the first round of NRC related judicial review proceedings up to the CFA was the “1^st JR”; the judicial review application pertaining to the SubC was the “2^nd JR”; and this habeas corpus application is the “3^rd JR”.  Indeed, in her submissions today, the Applicant’s focus was on why she said she should not be returned to the Philippines.  This only serves to reflect the unfortunate but apparently widely held belief that a non-refoulement claimant could resist removal as long as he keeps a set of legal proceedings alive in Court, known as “JR”, and that a habeas corpus application is the chance for a review of the NRC.  That is simply not correct.

31.  At the oral hearing, other than referring to the length of the period of detention (14 months), the Applicant failed to address at all any other reason why the detention might have become unlawful.  Instead, in summary, she said: (1) she needed to be released so that she could take care of all the things she needed to take care of; (2) she should be “bailed out” as she cannot be forced to go home because there is still a threat to her; (3) she was asking “for a favour” to be given a chance to remain in Hong Kong since she is still not ready to face the people who threaten her life; and (4) she has no family left in the Philippines so she wishes to remain in Hong Kong and seek humanitarian help.

32.  However, despite the fact that the Applicant has not really addressed the lawfulness of her detention or its continuation – and has instead shown the misconception as to the real point on this application – the burden in this application falls on the Director to show lawfulness.

33.  The Removal Order issued against the Applicant is valid and extant.  The detention of the Applicant under section 32(3A) of the Ordinance clearly provides prima facie lawful authority to detain the Applicant pending removal.  The question raised by this application is whether the detention has become unlawful, as a result of the period of detention becoming unreasonable in all the circumstances – when looking at the Hardial Singh principles outlined above.

34.  Ms Ngai submits that the detention of the Applicant has been reasonable at each stage, and throughout the entire 428 days. Having carefully considered the circumstances, I agree.

35.  First, the Director does intend to deport the Applicant and is only using the power to detain for that purpose.  The Director intends to remove the Applicant as soon as possible.  Throughout the period of the present detention, there has been no legal impediment to the Applicant’s removal and three replacement travel documents were obtained.  A repatriation operation was attempted on 13 April 2022 and a second repatriation flight has been arranged for 2 days from today, on 21 October 2022.  HS1 is satisfied.

36.  Secondly, the Director has acted with reasonable diligence and expedition to effect removal, evident by the replacement travel document, the failed repatriation operation and the second removal operation to be carried out soon.  HS4 is satisfied.

37.  Thirdly, there has been no extant NCR or related judicial review proceedings at any point in the present period of detention. All the NCR or SubC related proceedings had already come to a halt by 12 August 2021 when the Court refused leave to challenge the Director’s decision not to allow her to file the SubC, and imposed the RPO.  In the circumstances and where replacement travel documents were obtained, and efforts were made to secure a repatriation flight, the Director was correctly of the view that the Applicant could likely be removed within a reasonable period of time.  HS3 is satisfied.

38.  I also consider that there is a reasonably high risk of absconding given that she has a record of absconding for about a year. Notably she only resurfaced and approached ImmD on the same day she filed an application for leave to judicially review the Board’s decision.  Further, in light of her previous refusal to board the flight even when taken to the airport, there must be a high risk that the Applicant will failed to attend at the airport for her repatriation flight on this coming Friday.  Absconding risks frustrating the purpose of detention – namely, repatriation, which is imminent in this case.

39.  Whilst I bear in mind the relatively substantial period of detention to date (428 days), I agree with Ms Ngai that she would have been released from detention on 13 April 2022, albeit in the Philippines, had she cooperated in the first repatriation operation.

40.  Balancing matters overall, I have no difficulty in concluding that the Applicant has been detained, and will likely be further detained, only for a period that is reasonable in all the circumstances. Indeed, albeit upon her repatriation, the period of detention will cease in just 2 days.  HS2 is satisfied.

E.      Result

41.  The Applicant continues to be lawfully detained.  The Applicant’s application for writ of habeas corpus is, therefore, dismissed.

42.  I make no order as to costs.