The High Court has declared legal the
continued detention of a Filipino asylum seeker who refuses to leave even after
his application had been disapproved by the High Court, and has defied
a deportation order that dates back to Oct. 19, 2018.
Deputy
High Court Judge Jonathan
Wong made the ruling for the Court of
First Instance after Naguimbing Esmiralde, 57 years
old, filed a writ of habeas corpus seeking
his release from 252 days of detention.
Last
Sept. 20, 2023, Esmiralde -- who
has been an overstayer since his two-week tourist visa expired on Nov. 16, 2013
-- refused
to board his repatrition flight, claiming to be sick, forcing the Immigration
Department to return him to jail.
The writ had questioned the legality of detaining Esmiralde until
the government could send him home to the Philippines.
In a decision issued last Feb. 2, Judge Wong concluded: “I
am satisfied that the Applicant's detention, and likely foreseeable future
period of detention, has been and will remain lawful.”
Judge Wong cited a long list of reasons,
including Esmiralde’s separate convictions in 2015 for shoplifting, breach of
condition of stay and possession of a dangerous drug, for which he had been
fined or jailed.
He added that Esmiralde absconded
13 times -- failing to report for immigration
recognizance, jumping police bail and failing to appear in court – and could
abscond again if released.
“On all of the occasions except three, he
disappeared until he was arrested by the police, either for being a wanted
person or for suspected offenses. Each period of disappearance was typically
months long, with the longest stretching to more than 14 months,” Judge Wong
said.
Esmiralde also told the court he
needed to be released to rejoin his wife and five children – all
asylum seekers due for deportation and receiving allowances from an NGO – but
Judge Wong said: “Facing the very likely fact that the entire family will
eventually be removed, it seems to me that the family as a whole should
recognize that the desire to be reunited can and should be achieved outside
Hong Kong.”
These reasons had been cited earlier by Judge Russell Adam Coleman, who had made a similar ruling last Aug. 25, 2023.
“Many
of the matters relied on by the Applicant were considered by Coleman J in the
Decision. I have considered them again in the light of the now longer period of
the Applicant’s detention.... I find myself reaching similar conclusions as
those reached by the learned Judge,” he said.
Esmirade
launched his quest for asylum when he wrote to the Immigration Department on
May 30, 2015 that he wanted to file a non-refoulement claim. However, he
failed to submit the required documents, so the application was considered
withdrawn.
In February 2017,
he sought to reopen his claim but was rejected on March 3, 2017.
He appealed to
the Torture Claims Board/Non-refoulement Claims Petition Office (“TCAB”)
and the Court of First Instance on Nov. 8, 2017 and Jan. 16 2023. His
application was dismissed by CFI on Aug. 25, 2023.
On Oct. 9, 2023,
Esmiralde filed a “Subsequent Claim”, the processing of which the Immigration
Department accorded priority, so that the screening interview was conducted on
Jan. 26 2024.
That claim was rejected on Feb. 1, 2024, so he is looking to
appeal to the High Court again.
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