TRAN NGOC THUY v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 2002/2023

[2023] HKCFI 3285

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2002 OF 2023

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DECISION

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1.  Introduction

1.1  The Applicant is subject to a Deportation Order made on 24 February 1999 (“DO”).  He has been held in immigration detention since 19 August 2023 pursuant to section 32(3) of the Immigration Ordinance (“Ordinance”). As at the date of the hearing before me, the Applicant has been detained for a period of 118 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 interpreters, and the Respondents was represented by Mr Jinson Cheng, Government Counsel, who also signed the initial response.

2.  Background

2.1  The Applicant is a Vietnamese national.  He is a returned deportee who has entered Hong Kong illegally on 10 occasions and breached the DO on 6 occasions.

(1)  For the first 3 occasions of entering Hong Kong illegally, he was removed by means of the Orderly Repatriation Programme[1]. 

(2)  On his 4^th illegal entry into Hong Kong, he was arrested and convicted on 14 September 1998 of remaining in Hong Kong without the authority of Director having landed unlawfully in Hong Kong (“Offence”) and possession of false instrument and sentenced to 12 months’ imprisonment.  The DO, as stated above, was made on 24 February 1999.  He was deported to Vietnam on 27 May 1999.

(3)  Since then, between 2003 and 2008, the Applicant repeatedly entered Hong Kong illegally and was convicted of the Offence and breach of the DO[2]. 

(4)  On 30 March 2013 (ie the 10^th occasion of entering Hong Kong illegally), the Applicant was arrested by the police.  He was convicted of the Offence and breach of the DO on 5 April 2023 and sentenced to 24 months’ imprisonment (on appeal which reduced the sentence from 30 months’ imprisonment). 

2.2  Apart from being convicted a number of times of the Offence and breach of the DO (as set out in the preceding paragraphs), the Applicant otherwise did not further offend the law, save a minor conviction back in September 1993 for making off without payment where he was sentenced to a fine of HK$200 or 2 weeks’ imprisonment.

2.3  Following his last conviction in April 2023, the Applicant was released on recognizance on a number of occasions by reason of his non-refoulement claim (“NRC’).  He was last released on recognizance on 22 January 2019. The Applicant absconded on 7 January 2021 and only resurfaced after being arrested by the police on 17 August 2023.  Following his arrest, he was transferred to the Immigration Department on 19 August 2023 which marked the commencement of the current detention.

3.  The Applicant’s NRC and related proceedings

3.1  As stated above, the Applicant was released on recognizance on a number of occasions by reason of his NRC.

3.2  On 11 September 2014, the Applicant raised a NRC.  As a result, the Applicant was released on recognizance on 16 October 2014.

3.3  The Applicant’s NRC was rejected by the Director of Immigration (“Director”) on 27 January 2017.

3.4  The Applicant subsequently made an appeal/petition to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“TCAB”) against the decision of the Director.  On 16 October 2018, TCAB dismissed the Applicant’s appeal/petition, following which, the Applicant’s recognizance was ceased on 8 November 2018.

3.5  On 30 November 2018, the Applicant applied for leave to apply for judicial review against TCAB’s decision (HCAL 2724/2018) and was thereafter released on recognizance on 22 January 2019.  As stated above, he then absconded on 7 January 2021.

3.6  The Applicant’s leave application was dismissed by DHCJ K.W. Lung on 20 May 2021[3]. In gist, the learned Judge was of the view that there was no error of law or procedural unfairness in the Board’s rejection of the Applicant’s claims that he would be accused of treason in Vietnam, and if arrested or convicted, that he would be ill-treated or sentenced to death penalty.

3.7  The Applicant then sought an order for an extension of time to appeal which was rejected by DHCJ K.W. Lung on 15 November 2023, on the basis that there was no realistic prospect of his intended appeal[4].

4.  Current detention and its reviews

4.1  During the present detention, 4 interviews and 3 phone interviews were conducted with the Applicant on 29 August, 22 September, 6 October, 11 October, 25 October, 9 November and 14 November 2023.  On all occasions, the Applicant expressed his unwillingness to return to Vietnam.

4.2  Despite his unwillingness to return to Vietnam, the Applicant was arranged to attend an interview with the Vietnamese Interview Team.  An approval for the Applicant to return to Vietnam was granted on 3 November 2023. At the hearing, I was informed that the replacement travel document was in fact issued on 7 December 2023 and that a repatriation flight on 21 December 2023 has been secured.

4.3  In the latest review of the Applicant’s detention conducted on 23 November 2023, the broad grounds for his detention were stated to be (1) his removal is going to be possible within a reasonable time, (2) he poses or is likely to pose, a threat or security risk to the community, (3) he may abscond and/or (re)offend and (4) there are no other circumstances in favourable of his release. Reference was specifically made to the fact that there was no legal impediment for his removal by reason of the Updated Removal Policy.   It was considered that there was a substantial risk of absconding due to his unwillingness to return to Vietnam and his previous absconding records.  The risk of reoffending was also considered real due to the Applicant’s previous criminal records.

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)  The period of his detention has become unreasonable since deportation cannot be effected within a reasonable time.

(2)  He wishes to take his NRC to the higher courts.

(3)  He does not pose a threat to the community and he has already served his prison terms for his previous offences.

(4)  He promises that he will not abscond.

(5)  He fears for his own safety, if repatriated.

(6)  His right to liberty is a fundamental human right.

6.2  At the hearing, the Applicant confirmed his reliance on the matters stated in the preceding paragraph but placed specific emphasis on his fear for his own safety, if repatriated.

7.  Analysis

7.1  Throughout the Applicant’s detention period, there has been prima facie lawful authority to detain the applicant pursuant to section 32(3) of the Ordinance.

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 118 days, against which the various other factors must be weighed and balanced.

7.3  I accept that, throughout the period of detention, the intention of the Secretary is to remove/deport the Applicant and that has been the only purpose of the Applicant’s detention. This is amply demonstrated by the fact that the Applicant had been released on previous occasions by reason of an extant NRC.  The Applicant has been detained currently because, to a large extent, any legal impediment for his removal has been removed.  HS1 is satisfied.

7.4  I also accept that the Director has acted with diligence and expedition to effect the Applicant’s removal.  This is shown by the arrangements made for the issuance of a travel document and to secure a repatriation flight.  HS4 is satisfied.

7.5  By the time of the commencement of the detention, there was and is no longer any legal impediment to removal, by reason of the Updated Removal Policy.  The practical obstacle has since the detention also been removed.  A replacement travel document has been issued and a repatriation flight secured. 

7.6  I accept Mr Cheng’s submission that taking into account (1) the Applicant’s strong unwillingness to return to Vietnam, (2) his previous absconding records, and (3) the Applicant’s lack of local ties, the risk of absconding cannot be discounted, in particular given his imminent repatriation.  Absconding would defeat the primary purpose of effecting removal, for which the power to detain has been conferred.

7.7  I acknowledge that the nature and gravity of the Applicant’s previous convictions (predominantly related to his illegal entries into Hong Kong and consequent breaches of the DO) are not such to create a significant threat or security risk to the community.  However, it does signify that Applicant’s lack of regard to the need to comply with the law, which in turn reinforces the risk of absconding.

7.8  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.

7.9  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.