ARANGO CASTANO JOHNY RICARDO v. HONG KONG SAR GOVERNMENT

HCAL 940/2020

[2020] HKCFI 936

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 940 OF 2020

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D E C I S I O N

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INTRODUCTION

1.  This is an application by the Applicant seeking an order that a writ of habeas corpus ad subjiciendum be issued in respect of his current detention under Section 32(3A) of the Immigration Ordinance, Cap 115 (“the Ordinance”).  Unless otherwise indicated, references hereinafter to “Section” or “s” shall be to the Ordinance.

BACKGROUND FACTS

2.  The Applicant is a Columbian national.  On 29 May 2014, he arrived in Hong Kong and was permitted to remain as a visitor until 7 June 2014.  However, he did not depart from Hong Kong, and had overstayed in Hong Kong since 8 June 2014.  On 2 November 2015, he was convicted of the offence of breach of condition of stay, and sentenced to 6 weeks’ imprisonment suspended for 3 years.  On 13 November 2015, he was repatriated to Columbia.

3.  On 21 July 2018, the Applicant was arrested by the Police for the suspected offence of trafficking in dangerous drugs.  It was found that he had 6 packets of suspected dangerous drugs, which were later confirmed to consist of 3.65 g of a solid containing 1.98 g of cocaine.  As the Immigration Department did not have any movement record of the Applicant since his departure from Hong Kong on 13 November 2015, he was believed to have landed in Hong Kong unlawfully.  It appears, from the Applicant’s evidence in relation to his non-refoulement claim, that he went to China on 3 May 2018 and entered Hong Kong by boat on 10 May 2018.

4.  On 23 October 2018, the Applicant lodged a non-refoulement claim.

5.  On 14 March 2019, the Applicant’s non-refoulement claim was rejected by the Director of Immigration (“the Director”).

6.  On 11 April 2019, the Applicant’s late appeal/petition against the decision of the Director was received by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”).

7.  On 16 July 2019, the Applicant was convicted of the offence of trafficking in dangerous drugs on his own guilty plea, and sentenced to 19 months’ imprisonment.  His suspended prison sentence of 6 months for the offence of breach of condition of stay was also activated, to be run concurrently with his sentence for the offence of trafficking in dangerous drugs, resulting in a total prison sentence of 19 months and 6 weeks.

8.  On 9 September 2019, the Applicant completed his sentence and was discharged from prison.  He was transferred to the Immigration Department for detention at Castle Peak Bay Immigration Centre (“CIC”) under s 32(2A) pending a decision as to whether or not a removal order should be made against him.

9.  On 25 October 2019, a removal order (“the Removal Order”) under s 19(1)(b) was made against the Applicant, and he was detained pursuant to s 32(3A) pending his removal.

10.  On 30 October 2019, the TCAB accepted the Applicant’s late filing of the appeal/petition against the Director’s decision to reject his non-refoulement claim.  On 1 November 2019, the detention authority under s 37ZK was invoked against the Applicant pending the final determination of his non-refoulement claim.

11.  On 4 November 2019, the Removal Order was served on the Applicant.  On 5 November 2019, the Applicant gave notice that he had decided not to appeal against the Removal Order.

12.  On 21 January 2020, the TCAB heard the Applicant’s appeal/petition.  On 5 March 2020, the TCAB dismissed the Applicant’s appeal/petition.  In the TCAB’s decision, the Adjudicator found that the Applicant’s claim was vague or inconsistent, and considered that the Applicant had not made a genuine effort to substantiate his claim.  The Adjudicator was also satisfied that his claim that he had worked for an identified group which was said to be a “paramilitary group” in Columbia and he had escaped from them was not credible and untrue, and there was no basis for his claim that they had sought to harm him in the past or that they would do so in the future.  Accordingly, the Adjudicator rejected the Applicant’s non-refoulement claim based on persecution risk, BOR 2 risk, BOR 3 risk and torture risk.

13.  On 5 March 2020, the detention of the Applicant under s 37ZK ceased, and he was henceforth detained under s 32(3A) pending his removal from Hong Kong.  This detention of the Applicant has continued up to the present moment.

14.  On 11 March 2020, the Applicant filed a Form 86 seeking leave to apply for judicial review of the TCAB’s decision (HCAL 384/2020).  The Form 86 did not state any ground on which relief was sought.  In his affirmation filed in support of the application, the Applicant merely stated that the decision of the TCAB was “not fair”.  The leave application is currently pending determination by the High Court.

15.  There have been 2 reviews of the Applicant’s detention under s 32(3A) on 8 May 2020 and 22 May 2020 respectively.  It was decided on each occasion of review that the Applicant’s detention should continue on the grounds that (i) his removal was going to be possible within a reasonable time, (ii) he might constitute a threat/security risk to the community, and (iii) there were no other circumstances in favour of his release.

16.  On 19 May 2020, the Applicant made the present application for a writ of habeas corpus.  It was supported by his affirmation in which he stated the following:

“I have received a letter from Immigration Department on 15 May 2020. It’s stated that I am suspected to have connection with terrorist activities. However, I don’t have any connection with terrorist in my country or in anywhere else. I would like to have evidence regarding such allegation.”

17.  At the hearing on 25 May 2020, the Applicant said that he had been detained for a long time, and he had a friend who could act as his guarantor should he be released on recognizance.  He also said that there were other detainees who were released after having lodged applications for judicial review against the TCAB’s decisions, and did not understand why he was treated differently.

DISCUSSION

(a)  The Applicant’s detention is prima facie lawful

18.  The legal principles governing an application for a writ of habeas corpus are well settled.  The central question is whether there is lawful authority for a detention: see Fidelis Ahuwaraezeama Emen v Superintendent of Victoria Prison [1998] 2 HKLRD 448, at 453C-D per Stock J, as he then was:

“Now the purpose of an application of habeas corpus is to determine whether there is lawful authority for a detention. It is not to determine the reasonableness of any decision or whether there has been some failure to observe the rules of natural justice. Those are matters properly within the realm of judicial review.”

19.  The Applicant is currently detained under s 32(3A) of the Ordinance, which states as follows -

“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.”

20.  In view of the fact that -

(1)  a removal order under s 19(1)(b) in respect of the Applicant is in force; and

(2)  the Applicant is being detained pending his removal from Hong Kong under s 25,

the Applicant’s detention is, prima facie, lawful.

(b)  The Applicant’s detention is Hardial Singh compliant

21.  The relevant principles were set out in this court’s recent decision in Simona Mundia v Director of Immigration [2020] HKCFI 741, and will not be repeated here.

22.  In summary, the determination of whether a person has been detained for a period that is reasonable in all the circumstances is a fact-sensitive exercise.  The court has to consider, amongst other matters, the length of the period of detention; whether, and if so when, there is a realistic prospect that deportation will take place; the nature of the obstacles which stand in the path of a deportation; the diligence, speed and effectiveness of the steps taken by the Director to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences.

23.  When determining whether a period of detention has become unreasonable, the merits of the judicial process pursued by the detainee which impedes his removal is a relevant consideration.  Also, the risks of absconding and reoffending are of paramount importance in the court’s assessment of whether a period of detention has become unreasonable in all the circumstances.

24.  In the present case, there is nothing in the materials before the court to show that the Director is using the power of detention for any purposes other than for the removal of the Applicant.  There is also nothing to suggest that the Director has failed to act with reasonable diligence or expedition to effect the Applicant’s removal.  The only obstacle to the Applicant’s removal is his pending application for leave to apply for judicial review of the TCAB’s decision.  The Director is intent upon removing the Applicant at the earliest moment, and is of the view that the Applicant can be removed within a reasonable period of time and that it will not be impossible to do so.

25.  The court accepts that the Applicant has been detained for a substantial period of time.  The current detention under s 32(3A) pending his removal commenced on 5 March 2020.  The period of detention would be longer if one takes into account his previous detention during the following periods:

(1)  from 9 September 2019 to 25 October 2019 under s 32(2A) pending a decision as to whether or not a removal order should be made;

(2)  from 25 October 2019 to 1 November 2019 under s 32(3A) pending his removal from Hong Kong; and

(3)  from 1 November 2019 to 5 March 2020 under s 37ZK pending the determination of his non-refoulement claim.

26.  The present application is not the appropriate occasion to examine in detail the merits of the Applicant’s application for leave to apply for judicial review of the TCAB’s decision.  However, to the extent that the merits of the application are relevant to a consideration of whether the period of the Applicant’s detention has become unreasonable, on my provisional assessment, the application appears to be a weak one, and does not have a good prospect of success.  The Applicant’s mere assertion that the TCAB’s decision is unfair is plainly not a sufficient ground of judicial review.

27.  It is clear that the Applicant would have been removed much earlier but for his appeal/petition to the TCAB against the Director’s decision rejecting his non-refoulement claim and his application for leave to apply for judicial review of the TCAB’s decision in HCAL 384/2020. Whilst the Applicant is entitled to exhaust all administrative, statutory and/or judicial remedies against the Director’s rejection of his non-refoulement claim, I consider that he must bear some responsibility for his detention since 9 September 2019.

28.  In the present case, the Director is of the view that the Applicant might constitute a threat/security risk to the community due to the serious nature of his conviction for the offence of trafficking in dangerous drugs.  As this court stated in Harjang Singh v Secretary for Security [2019] HKCFI 1486, at §29, the Secretary/Director are much better placed than the court to consider matters such as the risks of absconding or reoffending, and whether a detainee, if released, may pose a threat or security risk to the community, which are fact-sensitive issues and involve a broad range of considerations on which the court has little knowledge or expertise.  Without in any way shirking its responsibility, the court is entitled to place weight on the Secretary/Director’s assessment on these matters.  In the present case, the Director has consistently come to the view that the Applicant does constitute a threat/security risk to the community due to his criminal conviction for the offence of trafficking in dangerous drugs, and the Director considers that the Applicant’s release would not be conducive to the public good.

29.  Pausing here, I should mention that the Director has confirmed that he is not alleging that the Applicant has any connection with terrorist activities.  This misunderstanding arose because in the “Notice of Review of Detention” dated 15 May 2020, the box “You are likely to pose a threat / security risk to local community e.g. suspected to have connection with terrorist activities” was checked.  At the hearing on 25 May 2020, Mr Lee confirmed that the only basis for the Director’s view that the Applicant was likely to pose a threat / security risk to local community was because of his conviction for the offence of trafficking in dangerous drugs.

30.  The Applicant confirms that he has no family members living in Hong Kong, but says that he has a friend who could act as his guarantor.  He also says that the friend and his family members in Columbia will give him support and assist him in renting an apartment in Hong Kong for him to live in pending the determination of his application for judicial review.  The fact that the Applicant can find a guarantor and may be able to afford an accommodation is, however, only one factor in the Director’s exercise of his discretion whether to release the Applicant’s on recognizance.  

31.  On the other hand, the fact that the Applicant has no family member living in Hong Kong, and has no obvious connection with Hong Kong, supports the continued detention of the Applicant.

32.  There is no reason to believe that the resolution of the Applicant’s application for leave to apply for judicial review of the TCAB’s decision will be unduly delayed, although, having regard to the large number of similar applications made by non-refoulement claimants pending before the High Court, it will inevitably take some time for them to be dealt with.

33.  The focus of the court’s consideration in an application for a writ of habeas corpus is the “legality” of the detention, not the “reasonableness” of the Director’s decision to detain.  Overall, I am of the view that the Applicant has not been detained for a period that is unreasonable in all the circumstances, and his current detention is in compliance with the Hardial Singh principles.

DISPOSITION

34.  The application for the issue of a writ of habeas corpus is dismissed.  There shall be no order as to costs, which is not sought by Mr Lee on behalf of the Respondent.