FERNANDO LOPEZ LOPEZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2136/2025

[2025] HKCFI 5220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2136 OF 2025

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DECISION

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A. Introduction

1.  I have before me an application for writ of habeas corpus by the Applicant filed on 22 September 2025 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”)  where he has been detained since 8 March 2025 (“the Application”).  The period of detention to date is 238 days (“the Detention”).

2.  On 25 September 2025, I directed the named Putative Respondent and Putative Interested Party to the Application inter alia to lodge and serve a response to the Application and the Applicant’s Affirmation filed in support of the Application.  An Initial Response of the Putative Interested Party dated 23 October 2025 (“the Response”)  has been lodged. 

3.  In the Response, it was stated that as the Secretary for Security (“the Secretary”)  exercised the power of detention under s. 32(3)  of the Immigration Ordinance, Cap. 115 (“IO”)  in respect of the detention of the Applicant and the Director of Immigration (“the Director”)  decides whether the Applicant should be released on recognizance and enforces the Deportation Order made against the Applicant (“DO”), the Response is filed on behalf of the Director and the Secretary.  I am of the view that the proper respondents to the Application should be the Director and the Secretary (collectively, “the Respondents”)  and they should be taken as the Respondents to the Application.

4.  At today’s hearing, the Applicant has appeared in person with the benefit of an interpreter. He has confirmed that he has been served the Response and a bundle of documents prepared by the Department of Justice acting on behalf of the Respondents.

5.  This is my Decision having heard the oral submissions of the Applicant and Mr Au, Government Counsel, appearing for the Respondents.

B.   Background

B1. Immigration status and stay in HK

6.  The Applicant is a Colombian national, born on 5 April 1985.  He claimed to have sneaked into Hong Kong by boat in 2018.

7.  On 26 January 2024, the Applicant was arrested by the Police for possession of dangerous drugs and remaining in Hong Kong without the authority of the Director.

8.  On 6 May 2024, the Applicant was convicted the offence of possession of dangerous drugs and was sentenced to 4 months’ imprisonment.

9.  On 20 June 2024, the Applicant was convicted of the offence of illegal remaining and was sentenced to 14 months’ imprisonment.

10.  On 23 October 2024, the DO was issued against the Applicant under s. 20(1)(a)  of IO.

11.  On 8 March 2025, upon discharge from prison, the Applicant was detained under s. 32(3)  of IO.

B2. The Applicant’s Non-Refoulement Claim (“NRC”)  and related legal proceedings

12.  On 10 March 2025, after the commencement of the Detention, the Applicant lodged a NRC which was refused by the Director on 12 May 2025 (“the Director’s Refusal”).

13.  On 28 May 2025, the Applicant lodged an appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office but this was dismissed on 31 July 2025 (“the Board’s Decision”).

14.  On 13 August 2025, the Applicant filed an application for judicial review against the Board’s Decision (“the JR Leave Application”)  but this was refused by the Court of First Instance on 16 September 2025.

B3. Steps towards the removal of the Applicant

15.  Even prior to the Detention, by letters dated 20 May 2024 and 19 July 2024, the Immigration Department (“ImmD”)  wrote to the Consulate General of the Republic of Colombia (“CG”)  seeking their assistance in issuing a replacement travel document to the Applicant. 

16.  On 22 July 2024, CG confirmed the Applicant’s identity and stated that the Applicant must go to CG to sign and stamp his fingerprint on the travel document to be issued.

17.  However, in all the interviews conducted with the Applicant by ImmD during the Detention (on 17 April 2025, 15 May 2025, 13 June 2025, 14 July 2025, 1 August 2025, 28 August 2025, 23 September 2025, 8 October 2025, 9 October 2025 and 16 October 2025), the Applicant consistently expressed strong unwillingness to return to Colombia.  In the last 5 interviews, he expressed his refusal to cooperate with ImmD to complete the re-entry application form, take photos and attend interview with CG.

18.  By letter dated 7 August 2025, a chaser letter was sent to CG by ImmD to seek issuance of a replacement travel document as soon as possible. 

19.  By further letters dated 5 September 2025 and 14 October 2025, ImmD informed CG that the Applicant remains uncooperative and refused to attend CG for interview. Enquiry was made on possible alternative means to issue a travel document regardless of the Applicant’s uncooperative attitude.

B4. Review of Detention

20.  In the latest review of detention conducted by the Secretary on 13 October 2025, it was considered that the release of the Applicant on recognizance was not warranted having considered and balanced the following factors:

(1)  With no NRC related impediment to removal after the JR Leave Application was refused on 16 September 2025, the Applicant’s removal is going to be possible within a reasonable time;

(2)  The Applicant was convicted of the offences of possession of dangerous drugs and remaining in Hong Kong without the authority of the Director which was the basis for the DO. The Applicant constitutes a threat/security risk to the community;

(3)  In light of the Applicant’s unwillingness to return to his home country, his uncooperativeness with re-entry formalities and not having local connections, there is a real risk of absconding and/or re-offending; and

(4)  There are no other circumstances in favour of release.

C.   The Applicant’s Submissions

21.  In the Applicant’s Affirmation, apart from reciting general legal propositions and quotations from other cases, so far as relevant to the facts of his case, in gist, the following submissions were made:

(1)  He has a right of further appeal in relation to his torture claim and judicial review which remains a legal impediment to his removal;

(2)  The condition of his left leg has worsened and his mental health is also not good due to the Detention; and

(3)  He has a problem in his home country.

22.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  He further submitted a four-page handwritten document of additional grounds in support of the Applicant after having received the Response.  In summary, these are:

(1)  He has an ongoing application for legal aid and is waiting for a decision in respect of the legal aid application.  He has submitted the “legal aid application card” and a letter granting “extension of time” (which was actually my letter granting extension of time to the Respondents to file the Response and is unrelated to the application for legal aid);

(2)  He has a Hong Kong permanent resident friend who is willing to act as his guarantor and his friend is present at today’s hearing;

(3)  His detention pending the determination of legal proceedings related to his torture claim is unlawful;

(4)  He did not prolong the Detention but it was caused by the legal procedures in applying for NRC and if it is lawful to be kept in detention because of the legal procedures he would have to withdraw his applications and go back to Colombia and face the risk of being killed;

(5)  His refusal to cooperate with the issuance of travel document is because he fears that after CG issues the travel document, at night ImmD will inject the people with sedatives, wrap them up like animals to be sent back to their country.  He does not see why trying to defend his claim is a wrongful or uncooperative unbehaviour by law;

(6)  It is not his intention to re-offend.  He is not a drug-dealer but used drugs before sometimes but he will never try it again as he does not want to go back to prison.  He does not have any past record of crimes of violent nature so he does not pose a threat to the Hong Kong community;

(7)  He is not able to “gather evidence” in support of his claim whilst detained; and

(8)  He often asked to go to the hospital to see a doctor in relation to his leg pain but has not been able to.  He only received Panadol which is not working for his pain.  He wishes the Respondents to show records of what treatment he has received.  He is in pain every day and cannot sleep.

23.  The Applicant confirmed that the above is a correct summary of his additional grounds.  I will take into account his submissions and additional grounds giving them such weight in the balancing exercise as seems to me to be appropriate.

D.   Applicable Principles

24.  The applicable principles to be applied in an application for habeas corpus are well-established.  They were set out by the Court of Appeal in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99.  See in particular the summary of the principles at §164.

25.  I also remind myself that the burden is on the respondents to an application for writ of habeas corpus to justify the lawfulness of the applicant’s detention.

26.  Under s. 32(4A)  of IO, the detention of a person shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including:

(1)  Whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, including the person not obtaining, or not providing assistance to obtain, any authorization from the relevant authorities of a place outside Hong Kong that is required for the person’s entry to that place;

(2)  The time required for the issue of the authorization referred to in (1);

(3)  Whether the person poses, or is likely to pose, a threat or security risk to the community; and

(4)  Factors that directly or indirectly prevent or delay the person’s removal that are not within the control of the Director.

27.  Moreover, the Court of Appeal recently provided guidance in Johnson Benjamin v Director of Immigration [2024] 1 HKLRD 582 on how the court ought to approach a detainee’s own unreasonable conduct and acts which caused, necessitated or prolonged any period of detention.  See at §29(3):

“In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee’s own unreasonable behaviour or conduct should not be counted or regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are other circumstances to show otherwise. This is so, as if otherwise, it would result in an absurd situation where the more unreasonably or uncooperatively a detainee behaves in seeking to frustrate or delay the procedures or process necessary to prepare for his removal, the more likely he is to be released. That cannot be the intention of the Hardial Singh principles.”

28.  Furthermore, at §37, it was held that even if there are ongoing NRC, there is no reason in principle why it is not reasonable to expect an applicant to cooperate with the relevant authorities to obtain the necessary travel document to facilitate his removal once the NRC is disposed of. 

E.   Analysis

29.  With the above principles in mind, I consider whether the Detention is lawful.

30.  There is clear prima facie authority for the detention of the Applicant throughout the Detention under s. 32(3)  (from 8 March 2025 to 20 March 2025 and since 31 July 2025)  and s. 37ZK (from 20 March 2025 to 31 July 2025)  of IO.  There can be no dispute that the DO made against the Applicant is valid and extant. 

31.  The question which then falls for determination is whether the detention has become unreasonable in all the circumstances and hence unlawful.  That question requires an assessment in accordance with the Hardial Singh principles, namely that:

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

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

(3)  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 (“HS3”); and

(4)  The Secretary/Director should act with reasonable diligence and expedition to effect removal (“HS4”).

See Harjang Singh at §164(8).

32.  The starting point is that the period of detention to date is 238 days, against which the other factors must be weighed and balanced.

33.  I accept that the Applicant has been detained for the purpose of his removal from Hong Kong and that the power of detention is being used only for that purpose.  This is evident from the Director’s efforts to seek issuance of a replacement travel document to the Applicant from CG long before the Detention, the continued liaison with CG and the numerous interviews with the Applicant in hope that he would express willingness to return to Colombia.  HS1 is satisfied.

34.  I also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal.  This is evident from the frequent interviews with the Applicant, continued liaison with CG and writing swiftly to the High Court on 27 August 2025 to seek priority to be accorded to the JR Leave Application. HS4 is also satisfied.

35.  With no legal impediment to the Applicant’s removal under the prevailing removal policy, there is no reason to believe that his removal cannot be effected within a reasonable period if the Applicant cooperates.  Insofar as the Applicant has refused and continues to refuse to cooperate with the removal arrangement and despite warnings that this would prolong his detention, the prolonged period of detention as a result of his unreasonable conduct should not be regarded as unreasonable or turn an otherwise lawful detention into an unlawful one. Otherwise, the more unreasonably and uncooperatively he behaves in seeking to frustrate or delay his removal, the more likely he is to be released which the Court of Appeal in Johnson Benjamin held cannot be the intention of the Hardial Singh principles.   As mentioned above, even if there are ongoing NRC, there is no reason why it is not reasonable to expect the Applicant to cooperate with the authorities to obtain the necessary travel document to facilitiate his removal once there is no legal impediment to his removal.

36.  Even though the Applicant says that he may further appeal, where he has failed to do so promptly and has unreasonably delayed his removal and caused his detention to be prolonged, the period of such detention should not be regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful.  Besides, further appeals do not constitute a legal impediment to his removal under the Government’s prevailing removal policy.

37.  A substantial period of the Detention was necessitated by the Applicant not raising his NRC promptly but only 7 years after he first arrived in Hong Kong.  Had it been made without delay, the NRC and related proceedings could well have been determined prior to the Detention.   The prolonged period of detention caused by the unreasonable conduct of the Applicant in delaying his pursuit and disposal of his NRC should not be regarded as unreasonable period of detention.  See Johnson Benjamin, §§23, 25, 26 and 29(1).

38.  I also accept the Secretary’s assessment that with his past convictions of very serious offences which led to the issuance of the DO, coupled with the Applicant’s stated unwillingness to return and lack of local ties, there is a real risk of the Applicant absconding and re-offending.  If he were to abscond, that would defeat the primary purpose for which the power to detain has been conferred and the intended effect of the DO.  The risks of absconding and re-offending are of critical and paramount importance in the assessment of the lawfulness of the detention.  See Harjang Singh at §164(14).

39.  In relation to the Applicant’s claimed physical and mental conditions, in view of previous decided cases, there is no reason to believe that the Applicant would not receive proper medical treatment whilst in detention, if required: see e.g. Mansuri, Intekhab Alam and Anor v Hong Kong SAR Government (Unrep)  HCAL 2428/2018, 6 November 2018, per Chow J (as he then was)  at §27.  I am also satisfied from the materials submitted to me by Mr Au at today’s hearing that that Applicant has been seen by a medical officer of TGCI and was prescribed medication for his leg pain and a follow-up at the Pamela Youde Nethersole Eastern Hospital has been arranged.  Although the follow-up is only scheduled for September 2026, I have no reason to believe that in the interim period he will not receive adequate medical treatment in detention or be referred to the Government hospital for treatment on a more urgent basis if necessary.

40.  Although the Applicant says that he has problems in Colombia, as has been stated and repeated in many previous decisions, an application for habeas corpus is not an opportunity for the applicant to continue to assert the concerns underpinning his NRC and the court in his application for habeas corpus will not look at the merits of such claim. 

41.  I do not believe that the Applicant’s other submissions can have the effect of outweighing the matters identified in the preceding paragraphs to justify his release.

42.  Overall, weighing the period of detention against all other factors, HS2 and HS3 are also satisfied.

F.   Conclusion

43.  By reasons of the above, I dismiss the Application with no order as to costs.