NGUYEN DUC TRONG v. DIRECTOR OF IMMIGRATION

HCAL 510/2023

[2023] HKCFI 1032

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 510 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant has been held in immigration detention since 19 November 2022 under various sections of the immigration Ordinance, Cap 115 (“Ordinance”). To the date of this hearing, the period of detention has lasted 151 days, or about five months.

2.  He was initially detained under section 32(3A) which permits detention of a person against whom a removal order has been issued. The Applicant is the subject of such a Removal Order which was made against him on 3 June 2015. The Removal Order remains extant.

3.  From 23 March 2023 to 13 April 2023, he was detained under section 29 for the purpose of making enquiry as to whether a deportation order should be made against him.

4.  Such a Deportation Order was eventually issued against the Applicant on 13 April 2023. Since then, he has been detained pursuant to section 32(3) pending his deportation from Hong Kong. The Deportation Order also remains extant.

5.  On 30 March 2023, the Applicant applied for a writ of habeas corpus on the broad ground that his detention has become unlawful by reference to the Hardial Singh principles.

6.  The Applicant only identified the Director of Immigration as the Respondent. But Mr Rex Cheung, Senior Government Counsel, from the Department of Justice (“DOJ”) said he also would also represent the Secretary for Security on whom the detention powers under the various sections of the Ordinance were conferred. I shall take both the Director and the Secretary as the Respondents

7.  I gave directions to bring the matter to today’s hearing. At the hearing, the Applicant appeared in person with the benefit of a Vietnamese/English interpreter. The Respondents, as said, had the benefit of Mr Cheung’s representation.

B.  Factual Background

8.  The Applicant is a Vietnamese national born in 1994. In August 2014 he surrendered himself to the Hong Kong authority and confessed to have entered Hong Kong illegally from the mainland in July 2014. He indicated his intention to lodge a non-refoulement claim (“NRC”) at the same time.

C.  The Applicant’s Non-refoulement Claim

9.  By two decisions, one made in August 2016 and the other in March 2017, the Applicant’s NRC on all applicable grounds was rejected by the Director. The Applicant then appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition office (“Board”), which dismissed the appeal in August 2018.

10.  The Applicant then sought leave to apply for judicial review to challenge the Board’s decision, in HCAL 2702/2018. The leave application was dismissed by DHCJ Lung on 26 May 2021.

11.  By summons filed on 4 January 2013, the Applicant sought leave from the Court of First Instance (“CFI”) to appeal against DHCJ Lung’s refusal out of time which was rejected by the same judge on 3 February 2023.

12.  By a summons filed on 13 February 2023, the Applicant renewed his extension of time application before the Court of Appeal (“CA”) in CAMP 67/2023, the resolution of which is still pending.

13.  It is relevant to note that the government has changed its removal policy which came into effect on 7 December 2022. As long as a claimant’s NRC has reached the stage of being rejected by the CFI, either in a leave decision or in a substantive decision, and such decision remains valid, the existence of further appeals is no longer seen as a removal impediment, preventing that person’s removal from Hong Kong.

14.  Therefore, from the perspective of the Director, since last December the Applicant’s NRC or related judicial review proceedings are no longer obstacles to removal.

D.  The Applicant’s Criminal and Absconding Records

15.  Whilst the Applicant’s NRC or related proceedings were being processed, he was released on immigration recognizance and was largely allowed to live freely in society. But he had committed various criminal offences for which he was sentenced to imprisonment, multiple times:

(1)  In February 2015, he was sentenced to a total of 6 months for two counts of theft.

(2)  In September 2018, he was sentenced to a total of 3 months for two counts of possession of a dangerous drug.

(3)  In February 2022, he was sentenced to 9 months for possession of false instruments.

(4)  In March 2022, he was sentenced to 8 months (with 2 months to run concurrently to his previous sentence) for possession of offensive weapon in a public place.

(5)  In April 2022, he was sentenced to 10 months for illegally remaining in Hong Kong.

16.  He also has a long record of absconding – in jumping bail granted by the Immigration Department, by the police or by the criminal courts. Between August 2017 and October 2021, the Applicant had jumped court bail on six occasions, and he had only resurfaced upon being arrested for being a wanted person or for another criminal offence in five out of the six occasions. On the last occasion, he only resurfaced upon being arrested after 10 months of disappearance. He also failed to report to immigration recognizance once in March 2019 and failed to report to police bail once in November 2020.

E.  Steps Towards Removal

17.  As mentioned above, since the change of removal policy in December 2022, the Applicant’s NRC related proceedings are no longer a removal obstacle.

18.  What seemed to have remained in the way of removal was the need to obtain the approval from the Vietnamese authorities for the Applicant’s re-entry and a valid travel document. To this end the Director has been actively communicating with the Vietnamese authorities which eventually gave approval for the Applicant’s re-entry on 13 February 2023. A valid passport, with a validity expiring on 14 February 2024, has also been issued to the Applicant on the 15 February 2023.

19.  I am informed that a repatriation flight to Vietnam fixed for 21 April 2023 has already been arranged for the Applicant.

F.  Time Taken for Making the Deportation Order

20.  I might be noted that there were more than two months from 15 February 2023 – the day when all the usual obstacles for removal appeared to have been resolved – and the date of the repatriation flight.

21.  Since the Applicant applied for writ of habeas corpus on 30 March 2023, any plans of removal had to be shelved pending the conclusion of this habeas corpus application. But still, there were about six weeks from the 15 February 2023 to the 30 March 2023.

22.  From Mr Cheung submissions, the time was taken for making enquiry as to whether a deportation order should be issued. As I understand it, the Applicant could be removed pursuant to the Removal Order and thus the issuance of a deportation order is not necessary for the purpose of his repatriation.

23.  However, Mr Cheung submitted that in view of the Applicant’s criminal record, the Director intended to remove the Applicant by a deportation order rather than a removal order.

24.  Still, that would not explain why the process for making a deportation order could not have started much earlier than it did. All the Applicant’s criminal offences were committed and prison terms served before the present immigration detention began.

25.  Mr Cheung submitted that ImmD would make an application for deportation order against a person either after the person’s re-entry to his country has been assured by the overseas authority or the person has a valid travel document which will enable him to return to his country. I am not sure that this matches my experience from seeing other cases, but I shall for the moment take this as some sort of internal practice adopted within the department. But it still does not explain why such a practice is necessary or appropriate, especially when the person to be removed or deported is already held in immigration detention.

26.  In this case, the period of detention pertaining to the making enquiry as to whether a deportation order should be issued only began on 23 March 2023, and that was five weeks after the removal obstacle had been resolved.

27.  It is of course not for me to suggest whether or not the Director/Secretary should seek a deportation order against any person. That is a question for the Director/Secretary. However, I would merely make the observation that a further period of detention when added to any prior period of detention may, in an appropriate case, be such as to render continued detention unlawful in the particular circumstances of that case. (However, as will be seen below, this is not such a case.)

G.  Review of Detention/ Notice of Detention

28.  Whilst the Applicant was detained under section 32(3A), his detention was reviewed by the Director once on 6 January 2023 and it was decided there should be continued detention (as opposed to release on recognizance). Broadly, the grounds relied upon for continued detention were that (a) his removal is going to be possible within a reasonable time; (b) he poses or is likely to pose a threat to a security risk to the community; (d) he may abscond and/or reoffend; (e) he does not have close connection or fixed abode in Hong Kong and that (d) there are no other circumstances in favour of his release. The Director noted his criminal record, absconding record, and the change of removal policy in December 2022 which has rendered the Applicant’s judicial review proceedings no longer an obstacle to removal.

29.  When the Applicant started to be detained under section 29 on 23 March 2023, he was served with a notice of detention for this purpose. Broadly similar grounds were relied upon by the Director to justify detention rather than release on recognizance, except that “your removal is going to be possible within a reasonable time” was substituted with “the enquiry as to whether you ought to be deported is going to be concluded in the near future”.

30.  After the Deportation Order was issued and the Applicant started to be detained under it pursuant to section 32(3) on 13 April 2023, a further notice of detention was also served upon him for this purpose. The grounds and the reasons relied upon by the Director in support of detention were broadly similar to what was stated when he recommended continued detention in January 2023. But, perhaps in response to the new information provided by the Applicant in the meantime, it was noted that he claimed that he had a friend who was a Hong Kong permanent resident and who was willing to stand as his guarantor. The Director said that this friend could hardly be considered as a close local connection when compared to an immediate family member and this factor, after having been taken into consideration, does not outweigh the other factors favouring detention.

H.  Applicable Principles

31.  In its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781, the CA addressed the principles to be applied in a case such as the present. The case can be read for its full reasoning and explication of the correct approach, but at §164 the Court offered a summary of the principles which should be adopted and which can be applied as appropriate to the particular circumstances of this case.

I.  Applicant’s Submissions

32.  The Applicant exhibited a few pages of handwritten materials to his supporting affirmation. I will summarize them briefly below, with reference to the information supplemented by the Director.

33.  First, he said the Director failed to give weight to his family. He said it would be very hard for his wife and his son to be separated from him.

34.  But, in fact, the Applicant is not married, though he has fathered a son with his ex-girlfriend. Both the son and ex-girlfriend are themselves non-refoulement claimants. I also note that he apparently has no contact with them since at least January 2022 (prior to his imprisonment), and the ex-girlfriend married a permanent Hong Kong resident last year.

35.  Second, he said that the Director had failed to properly consider that his mother-in-law would act as his guarantor. He gave the name, the Hong Kong ID number and the telephone number of this guarantor. He said the Director did not give him any reason why the guarantor has no weight in supporting his release.

36.  This person is the “friend” who was referred to by the Director in the latest notice of detention (see above). I am informed by the Director that the Applicant initially put forward this person as his mother-in-law. The Director called this person and she said she was only a friend of the Applicant but not his mother-in-law, albeit she was willing to act as his guarantor.

37.  Third, he said the chance of offending is very low because he will stay with his family, and his past convictions are not related to violent crimes. He also gave an address where he said he will be residing at so that the Director can locate him easily. I suppose this purports to suggest that the risk of absconding could somehow be alleviated.

38.  Fourth, he said his removal cannot be effected. He referred to his ongoing proceedings in CAMP 67/2023 and said it is not possible to predict when his NRC related proceedings might be resolved because he would still have the right to appeal further and to make a subsequent claim.

39.  Lastly, he said the Director has not been taking any active steps to effect his removal.

40.  At the oral hearing, the Applicant made further submissions which centred on his son. As he pointed out, he has a small child, a son, who is six years old. He would like to be released to be able to take care of the child, though he does not know the child’s status since he has lost touch with his ex-girlfriend. Hence, the main point of his submission was that he would like to be able to be released to be able to find his ex-girlfriend (and her husband), and the son, so that he can have discussions with the ex-girlfriend about future care for the son. He does not know where they are, except that they are still in Hong Kong. He understands (apparently from an immigration officer) that the ex-girlfriend is applied for a visa to stay in Hong Kong. One option for discussion would be for the son to return with him to Vietnam, whilst the other would be for the son to continue living with the ex-girlfriend. The Applicant said that he misses his son, and that it would be a shame if his son does not know him now or in future when he grows up, and that he would like to find a solution, for which he needs time. He also asked the rhetorical question why the authorities would wish to separate him from his child, instead of giving him a chance to find that solution.

41.  In that context, he said that he has told the immigration officers that he does not wish to return to Vietnam because he has a child in Hong Kong.

42.  I will bear these points in mind in my overall assessment below, and make reference to them as appropriate.

J.  Whether Detention has become unlawful

43.  The Removal Order and the Deportation Order remain extant. There does not appear to be any irregularity pertaining to the orders issued under section 29. Therefore, there was and remains clear prima facie lawful authority for the detention of the Applicant. The question then arises whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

44.  The starting point is that the Applicant has been detained up to today for the period of 151 days, or about 5 months. It is against that period that the other factors are to be weighed and balanced.

45.  I can address and apply the Hardial Singh principles broadly in turn, as follows.

46.  There are no reasons to suspect that the Director has not been using the detention powers for the purposes as conferred by the statute. I accept that HS1 is satisfied.

47.  As for HS4, for the period before 15 February 2023, I have no difficulty in accepting that the Director has acted with reasonable diligence in effecting removal. This is evident by the Director’ active liaison with the Vietnamese authorities resulting in the issuance of the passport and the giving of approval for the Applicant’s return in mid-February. The Applicant’s assertion that the Director has taken no active steps is plainly wrong.

48.  I have also noted that the period after 15 February 2023 could have been somewhat shortened had the Director proceeded with removing the Applicant on the strength of the Removal Order, rather than pursuing the Deportation Order. I recognize that the time taken (from 23 March to 13 April 2023) for such purpose was within the statutory limit under sections 29(1) and 29(2). But, as said, it is not apparent to me why the process could not have been started much earlier when the Applicant had already been detained under section 32 for months. Nevertheless, looking at all the steps the Director has taken in this case, I am satisfied that HS4 is satisfied.

49.  Once the change of removal policy came into effect on 7 December 2022, the Applicant’s NRC related judicial review proceedings were no longer an obstacle. The Applicant was thus mistaken in believing that the CAMP 67/2023 or his rights to further appeal and to lodge a subsequent claim would prevent the Director from removing him in the foreseeable future. Since 7 December 2022, the only removal obstacle was the need to obtain from the Vietnamese authorities an approval for the Applicant’s return and the issuance of a valid passport, both of which were being actively pursued by the Director. Therefore, it was not unreasonable for the Director to believe that the Applicant could be removed within a reasonable time throughout the period of the present detention.

50.  As for the time needed for the issuance of the Deportation Order, this was a matter the Director was at the position to offer an accurate estimate. As it now stands, the Deportation Order has been issued and the repatriation flight scheduled within days.

51.  I also agree with the Director on his assessment of the risk of reoffending and absconding. It would not be unfair to describe the Applicant as a repeated offender, when he has been in and out of prison multiple times. He said that the crimes he committed were not of a violent nature, but I would note that one of his convictions was possession of an offensive weapon in a public place for which he was sentenced to 8 months. The act for which he was convicted was capable of giving rise to violence if the crime itself could not be described as a violent act. The Applicant also has a rather long record of absconding. I also recognise his repeated indication that he was and is unwilling to return to the Vietnam, given during his interviews with the Director. In light of all these matters, I agree with the Director that there is a real risk of reoffending or absconding if the Applicant is to be released on recognizance. Absconding would frustrate the purpose for which the power of detention is given in the first place.

52.  As to family ties, it is not correct that the Director had given no reasons on this family/guarantor factor. First, I note that as recently as 27 March 2023, the Applicant apparently confirmed to the Director (in a signed note) that he did not have local connection in Hong Kong. But, in any event, his ex-girlfriend has apparently remarried. Though I accept that there may have been some practical difficulties in seeking to re-establish contact with the ex-girlfriend whilst the Applicant has been in custody or detention, I do not think that explains the apparent complete failure to have sought to establish that contact.

53.  I also acknowledge that a primary purpose for any child to have contact with the parent is for the benefit of the child, not just the benefit of the parent. I therefore take into account that there is some interest in the Applicant’s son re-establishing contact with the Applicant. But, it seems to me that what the Applicant is essentially asking for is more time in Hong Kong, that is not to be removed for some further period of time (during which he asks to be released on recognizance). But, where there is an extant Deportation Order, I do not think it is for me to decide when the Applicant should be deported from Hong Kong. The question which I have to decide is whether it continues to be lawful to detain him until he is removed. That removal is imminent.

54.  Further, Mr Cheung is correct when he submits that even if the Applicant is deported to Vietnam, it will be open to him to seek to establish and exercise parental rights in relation to the sun by instructing a solicitor in Hong Kong. Though it might be more difficult as a matter of practicality, it is not strictly necessary for the Applicant to be in Hong Kong to make relevant enquiries, have discussions with the ex-girlfriend, and (if appropriate) commence any relevant court proceedings. I would, however, merely note that on the materials that I have been given, I would be at least extremely doubtful that the Applicant would be permitted to take the son to Vietnam when he is deported. Of course, I say nothing in relation to what orders a court might actually make, whether as to custody, care and control, or access.

55.  Further, the person he identified as being willing to be his guarantor was only a friend rather than a close family member. In the circumstances, I agree that these factors when taken into account are insufficient to tilt the balance towards release on recognizance.

56.  Nor do there seem to me to be any other factors pointing in favour of release on recognizance.

57.  Weighing the period of detention – 151 days, or about 5 months – against all the factors including the imminent repatriation, I am satisfied that the detention of the Applicant has remained and will remain or continue for a period which is reasonable and lawful. HS2 and HS3 are satisfied.

K.  Result

58.  For these reasons, I dismiss the Applicant’s application for a writ of habeas corpus. I make no order as to costs.