VU VAN QUYEN v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 2004/2023

[2023] HKCFI 3288

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2004 OF 2023

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DECISION

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1.  Introduction

1.1  The Applicant is subject to a Removal Order made on 12 July 2023 and a Deportation Order made on 11 December 2023.  He has been held in immigration detention since 7 June 2023 pursuant to various sections of the Immigration Ordinance Cap 115 (“Ordinance”).  As at the date of the hearing before me, the Applicant has been detained for a period of 191 days.

1.2  On 9 November 2023, the Applicant applied for a writ of habeas corpus. Directions were thereafter given for the Respondents to file an initial response.  At the hearing, the Applicant appeared in person, with the benefit of an interpreter, and the Respondents were represented by Mr Andrew Tong, Government Counsel, who also signed the initial response.

2.  Background

2.1  This is a slightly unusual case.

2.2  The Applicant is a Vietnamese national.  On 30 October 2020, the Applicant was arrested by the police and was found to be an illegal immigrant. He claimed to have entered Hong Kong illegally on 23 August 2020.  On 2 March 2021, he was convicted of the following charges and sentenced to a total of 17 months’ imprisonment in WKCC 3751/2020:

(1)  Selling liquor without a licence;

(2)  Possession of liquor for sales or supply without licence;

(3)  Remaining in Hong Kong without the authority of the Director of Immigration (“Director”);

(4)  Knowingly allowed the taking place of a prohibited group gathering of which he controlled;

(5)  Two counts of without reasonable excuse failing to comply with direction issued under section 8(1) of Prevention and Control of Disease (Requirements and Directions) (Business and Premises) Regulation Cap 599F.

2.3  Whilst serving his prison term, on 13 July 2021, the Applicant was convicted of trafficking in dangerous drugs, under DCCC 184/2021 and sentenced to 32 months’ imprisonment, 2 months of which to run concurrently with the sentence imposed in WKCC 3751/2020.

2.4  Upon his discharge from prison on 7 June 2023, the Applicant was transferred to the Immigration Department and has since been detained under various sections of the Ordinance.

(1)  On 7 June 2023, the Applicant was detained under section 32(2A)(a) of the Ordinance pending decision as to whether or not a removal order should be made.  As stated above, a removal order was in fact made on 12 July 2023.

(2)  From 7 June (at 10:10 hours) to 13 September 2023, the Applicant was detained under section 37ZK of the Ordinance pending final determination of his torture claim;

(3)  From 13 September to 27 November 2023, the Applicant was detained under section 32(3A) of the Ordinance pending removal from Hong Kong; and

(4)  Since 27 November 2023, the Applicant was detained under section 29(1) of the Ordinance for inquiry as to whether the Applicant ought to be deported under section 20(1)(a) of the Ordinance.

(5)  Since the making or the Deportation Order on 11 December 2023, the Applicant has been detained under section 32(3) of the Ordinance.

2.5  As is plain from the above chronology, the slightly unusual feature of the present case is that, unlike most cases which come before me, during the bulk of the Applicant’s presence in Hong Kong, he has first been imprisoned and then put in immigration detention.

3.  The Applicant’s non-refoulement claim (“NRC”) and related proceedings

3.1  On 15 May 2023, the Applicant indicated his intention to lodge a NRC by way of written signification.

3.2  On 29 June 2023, the Director rejected the Applicant’s NRC.

3.3  On 13 September 2023, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”) dismissed the Applicant’s appeal/petition against the refusal decision of his NRC (“TCAB’s Decision”).

3.4  On 25 October 2023, the Applicant applied for leave to apply for judicial review against TCAB’s Decision (HCAL 1918/2023).  Shortly after the issuance of the present application, on 13 November 2023, the Department of Justice requested the Registrar of the High Court to accord priority to HCAL 1918/2023.  A further request was made on 6 December 2023 for an estimate of the approximate period of time required to determine HCAL 1918/2023.  At the hearing, I was informed that HCAL 1918/2023 will be heard on 2 January 2024 at 10 am.

4.  Current detention and its reviews

4.1  The Applicant has throughout expressed his unwillingness to return to Vietnam.  Despite the foregoing, on 6 October 2023, the Applicant was issued a passport which remains valid for 12 months.

4.2  During the current detention, a number of reviews were performed on 7 June, 5-7 July, 14-16 August, 13 September and 21-23 November 2023. 

4.3  In the latest review conducted in November 2023, it was considered that the Applicant’s case is not one warranting releasing on recognizance on the following broad grounds:

(1)  the Applicant’s removal is going to be possible within a reasonable time;

(2)  there is no sufficient reason to believe that the Applicant’s case cannot be finalized in the near future;

(3)  the Applicant poses, or is likely to pose, a threat of security risk to the community;

(4)  the Applicant has convictions associated with crimes of a serious nature;

(5)  the Applicant does not have any known local ties; and

(6)  the Applicant’s strong unwillingness to return to Vietnam causes a substantial risk of absconding in the light of his imminent removal.

4.4  Since the making of the Deportation Order, the Secretary on 11 December 2023 authorized the detention of the Applicant pursuant to section 32(3) of the Ordinance, on grounds broadly similar to those set out in the preceding paragraph.

5.  The applicable principles

5.1  The applicable principles are set out in Harjang Singh v Secretary for Security [2022] HKCA 781.  I have in particular borne in mind the summary set out at §164 thereof.

5.2  I remind myself that the burden is on the Respondents to an application for a writ of habeas corpus to justify the lawfulness of the Applicant’s detention. 

5.3  Further, as has been stated and repeated in many previous decisions, an application for a writ of habeas corpus is not an opportunity for the Applicant to continue to assert the concerns underpinning his NRC and the Court in his habeas corpus application will not look at the merits of any such claim.  The central question is whether the detention has become or will foreseeably become unreasonable in all the circumstances and hence unlawful.

6.  The Applicant’s submissions

6.1  The Applicant’s submissions, in so far as they may be deciphered from his written materials, may be summarized as follows:

(1)  He has been detained since 7 June 2023 and there is no indication yet as to when he may be removed from Hong Kong;

(2)  His previous convictions were not related to violence.  In any event, he has served the requisite term and is now truly remorseful for his previous misdeeds;

(3)  HCAL 1918/2023 is still ongoing, and were it dismissed, he wishes to take the matter further to the higher courts; and

(4)  He appears to refer to his fear for his own safety, if repatriated.

6.2  At the hearing, he confirmed his reliance on the matters stated above. He further offered, for the first time, an aunt to act as his guarantor.  The offer of such a guarantor is somewhat surprising, as the Applicant admitted that this is the first time that he has revealed the existence of an aunt in Hong Kong, despite his written representations that he did not have any local ties previously.

7.  Analysis

7.1  I have set out at §2.4 above the various provisions of the Ordinance pursuant to which the Applicant has been detained at various times during the current detention.  I accept Mr Tong’s submission that each of the provisions provides prima facie lawful authority to detain the Applicant.  See also Wallace Shaun Mark v Director of Immigration & Ors [2023] HKCFI 2847 §§22 and 48 at which Coleman J also considered the provisions of the Ordinance relevant to the present case.

7.2  The question which falls for determination is therefore whether the detention has become unreasonable in all the circumstances, and hence unlawful. The starting point is the period of detention, namely 191 days, against which the various other factors must be weighed and balanced.

7.3  I acknowledge that 191 days is objectively not a short period, and additionally, there is at present still a legal impediment for the Applicant’s removal which will remain, pursuant to the Updated Removal Policy, until the resolution of HCAL 1918/2023.

7.4  I accept that, throughout the period of detention, the intention of the Director is to remove/deport the Applicant and that has been the only purpose of the Applicant’s detention.  HS1 is satisfied.

7.5  I also accept that the Director has acted with diligence and expedition to effect the Applicant’s removal.  This is amply demonstrated by arrangements made for the issuance of a travel document and to expedite the resolution of HCAL 1918/2023.  HS4 is satisfied.

7.6  Although there is currently a legal impediment to removal, I have considered TCAB’s Decision and the Applicant’s Form 86 which initiated HCAL 1918/2023.  TCAB’s Decision sets out a very detailed analysis of the Applicant’s claim and the Applicant’s Form 86 does not identify any grounds on which relief is sought.  It seems to me that a clear inference may be drawn that HCAL 1918/2023 is simply an attempt to raise a legal impediment to removal.  In any event, a hearing date has now been fixed and there is no reason to believe that HCAL 1918/2023 cannot be finalized in the near future.

7.7  I accept Mr Tong’s submission that taking into account (1) the Applicant’s strong unwillingness to return to Vietnam, (2) his uncooperative attitude, and (3) the Applicant’s lack of close local ties, the risk of absconding cannot be considered low.  There is a lack of absconding record simply because the Applicant has not been offered recognizance due to his arrest and imprisonment shortly after his illegal entry into Hong Kong.  Whilst I am prepared to assume that, despite previous written representations to the contrary, the Applicant has an aunt in Hong Kong, it is evident that their relationship cannot objectively be described to be close.  Absconding would defeat the primary purpose of effecting removal, for which the power to detain has been conferred.

7.8  I also accept Mr Tong’s submission that there is a real and significant risk that the Applicant may reoffend if released.  The nature of the Applicant’s previous convictions (in particular trafficking) is a serious offence with the potential to do substantial harm to the community.  The fact that the Applicant committed the serious offences almost as soon as he arrived illegally in Hong Kong amply justifies a finding that he has low regard for the law.

7.9  In so far as the Applicant seeks to justify his uncooperative attitude by reason of the fear for his own safety if repatriated, it is an attempt to reassert the concerns underpinning his NRC, and as stated above, the Court in his habeas corpus application will not look at the merits of any such claim.

7.10  For the above reasons, HS2 and HS3 are also satisfied.

8.  Conclusion

8.1  I am satisfied that the Applicant’s detention, and likely foreseeable future period of detention, has been and will remain lawful.

8.2  As a result, the Applicant’s application is dismissed with no order as to costs.