BELZA DIONNE SALVILLA v. DIRECTOR OF IMMIGRATION

HCAL 1662/2023

[2023] HKCFI 2883

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1662 OF 2023

_____________

_____________

____________________

DECISION

____________________

1.  Introduction

1.1  The applicant is subject to a Removal Order made on 23 May 2014 pursuant to section 19 of the Immigration Ordinance Cap 115 (“Ordinance”).  He has been held in immigration detention at the Castle Peak Bay Immigration Centre (“CIC”) since 24 March 2023 pursuant section 32(3A) of the Ordinance.  As at the date of the hearing before me on 8 November 2023, the applicant has been detained for a period of 230 days.

1.2  On 18 September 2023, the applicant applied for a writ of habeas corpus. Directions were there after given for the respondent to file an initial response.  At the hearing, the applicant appeared in person, with the benefit of an interpreter, and the Director of Immigration (“Director”) was represented by Ms Augusta Wong, Government Counsel, who also signed the initial response.

2.  Background

2.1  The applicant is a Filipino male born on 23 June 1977.  On 8 May 2013, the applicant arrived in Hong Kong and was permitted to stay initially until 22 May 2013, but his permission to stay was subsequently extended until 29 May 2013.  He has since overstayed in Hong Kong. 

2.2  On 1 April 2014, the applicant was arrested by the police for being an overstayer and referred to the Immigration Department for investigation.

2.3  As stated above, a Removal Order was made against the applicant on 23 May 2014.  The applicant declared on 26 May 2014 that he did not intend to appeal against the Removal Order and was released on recognizance the following day. 

2.4  Following the applicant’s release on recognizance, the applicant failed to comply with the reporting condition under his recognizance on three occasions, namely on 6 February 2015 (until arrested by the police on 31 March 2016), on 30 September 2016 (until arrested on 20 December 2016) and on 17 February 2017.  The applicant was arrested by the Immigration Department on 19 February 2017 and was thereafter charged for the offence of taking employment while being a person in respect of whom a removal order was in force. After the applicant was acquitted on 5 July 2017, the applicant then failed to comply with the reporting condition under his recognizance until he was arrested by the police on 24 March 2022.

2.5  According to the applicant, he is single and his parents are in the Philippines.  He has no local ties or connections in Hong Kong.

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

3.1  Despite a lengthy period of inactivity on the part of the applicant between April 2014 and April 2022, the applicant’s NRC was eventually re-opened on 14 April 2022 and rejected by the Director on 6 June 2022.  His appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”) was subsequently dismissed on 12 August 2022. In essence, TCAB concluded that applicant’s claim that he would be harmed or killed by members of the New People’s Army was unsubstantiated.

3.2  On 20 September 2022, the applicant applied for leave to apply for judicial review against the decision of TCAB (HCAL 974/2022^[1]).  DHCJ K.W. Lung dismissed the leave application on 1 December 2022 as he did not find any error of law or procedural unfairness in TCAB’s decision.

3.3  The applicant’s subsequent challenge to the Court of Appeal (CACV 481/2022) was unsuccessful^[2], and his application to take the matter further to the Court of Final Appeal was also declined^[3].

4.  Current detention and its reviews

4.1  The applicant’s recognizance was ceased on 24 March 2023.  As recorded in the Notice of Detention, continued recognizance was not recommended on the broad ground that the applicant’s removal was going to be possible within a reasonable time and that immediate repatriation was being arranged for the applicant’s departure.  Reference was expressly made to the Updated Removal Policy which took effect on 7 December 2022.

4.2  The applicant’s passport was valid until 3 December 2017.  Even before his current detention which commenced on 24 March 2023, and throughout his current detention, the applicant has expressed unwillingness to return to his home country and refused to attend an interview with the Consulate General of the Republic of the Philippines (“CGP”) for the purpose of issuing a replacement travel document for the applicant’s re-entry to the Philippines. Generally speaking, an emergency travel document would be issued to the applicant within two weeks after an interview with the CGP.

4.3  In the latest review of detention conducted on 23 September 2023, the Director decided that release of the applicant on recognizance was not warranted.  In addition to the grounds initially relied upon, the Director specifically took into account, inter alia, the fact that as the applicant had repeatedly expressed his unwillingness to return to his home country, there was a real risk that the applicant, if released, would abscond so as to evade from being repatriated.

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

6.  The applicant’s submissions

6.1  The grounds set out in the applicant’s written materials may be summarized as follows.  First, he fears for his own safety, if repatriated, as he has received death threats from influential and powerful people.  Secondly, the applicant refers to the fact that he has already been detained for more than five months (as at the date of his application).

6.2  At the hearing, he confirmed his reliance on the grounds identified in his written material.  He repeated or reiterated his fear for his own safety, if repatriated, and offered an apology for his previous failures to comply with the reporting condition under his recognizance.

7.  Analysis

7.1  Throughout the applicant’s detention period, there has been prima facie lawful authority to detain the applicant pursuant to section 32(3A) 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 230 days, against which the various other factors must be weighed and balanced.

7.3  I acknowledge that 230 days is objectively a lengthy period.

7.4  I accept that, throughout the period of detention, the intention of the Director is to remove/deport the applicant and that has been the only purpose of the applicant’s detention.  I note that the applicant was detained shortly after the Updated Removal Policy came into effect.  HS1 is satisfied.

7.5  I also accept that the Director has acted with diligence and expedition to effect the applicant’s removal.  This is amply demonstrated by the attempts made, despite the applicant’s uncooperative stance, to complete the reentry formalities.  For example, during the current period of detention, at interviews conducted on 22 May, 8 August, and 7 September 2023, the applicant expressed in unequivocal terms his unwillingness to return to his home country.  Despite such resistance, arrangements were made for the applicant to attend an interview with the CGP on 26 September and 18 October 2023, which the applicant refused to attend.  HS4 is satisfied.

7.6  By the time of the commencement of the detention, there was and is no longer any legal impediment to removal.  The practical obstacle to removal was the applicant’s own uncooperative attitude in completing the reentry formalities.  I accept Ms Wong’s submission that had the applicant chosen to cooperate, his Emergency Travel Document would have been issued earlier, and so the applicant could have been removed (and hence released from detention) earlier. I think Ms Wong is right in her submission that the applicant has contributed to the length in detention, which factor I take into account and give weight: Sections 32(4A)(d) and (e) of the Ordinance.

7.7  The applicant has no verifiable local connection.  I accept Ms Wong’s submission that taking into account (1) the applicant’s strong unwillingness to return to the Philippines, (2) his uncooperative attitude and (3) the applicant’s previous history of failing to comply with the reporting condition under his recognizance, the risk of absconding is objectively substantial.  Absconding would defeat the primary purpose of effecting removal, for which the power to detain has been conferred.  I do not attach weight to the applicant’s expression of apology which was only made at the hearing.

7.8  I agree with Ms Wong that the applicant’s clear criminal record does not tilt the balance in favour of releasing him on recognizance. 

7.9  In so far as the applicant seeks to justify his uncooperative attitude by reason of the fear for his own safety if repatriated, it is an attempt to reassert the concerns underpinning his NRC and, as stated above, the court in his habeas corpus application will not look at the merits of any such claim.

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

8.  Conclusion

8.1  For the above reasons, 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.