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
||ARANGO CASTANO JOHNY RICARDO
||HONG KONG SAR GOVERNMENT
||Hon Chow J in Court
|Date of Hearing:
||25 May 2020
|Date of Decision:
||3 June 2020
D E C I S I O N
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.
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...