NGUYEN THI NGAN v. HONG KONG SAR GOVERNMENT

HCAL 918/2026

[2026] HKCFI 5549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 918 OF 2026

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DECISION

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1.  Introduction

1.1  The Applicant is subject to a Removal Order made on 28 April 2021.  She has been held in immigration detention under section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”) since 27 March 2026.  As at the date of the hearing before me, she has been detained for 188 days.

1.2  This is my decision on the Applicant’s application for a writ of habeas corpus made on 14 May 2026.  At the hearing, the Applicant appeared in person, with the benefit of an interpreter.  Mr Peter Wong, Government Counsel, appeared for the Director of Immigration (“Director”).

2.  Background

2.1  The Applicant is a Vietnamese national.  On 29 March 2021, the Applicant was arrested by the police for illegal remaining.  On 7 April 2021, she was referred to the Immigration Department.  She claimed that she had entered Hong Kong illegally on 28 March 2021.

2.2  On 18 April 20201, the Applicant was released on recognizance.  She has a clear criminal record and has throughout complied with her recognizance conditions.

2.3  The Applicant has a cousin who is a Hong Kong permanent resident (“Cousin”).  Cousin’s husband is also a resident in Hong Kong.

3.  Non-refoulement claim (“NRC”) and related proceedings

3.1  The Applicant’s NRC was rejected by the Director on 2 November 2021.  Her subsequent appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was dismissed on 11 May 2022 (“TCAB Decision”).

3.2  Thereafter, the Applicant applied for leave to apply for judicial review against the TCAB Decision by way of HCAL 544/2022 (“JR Leave Application”).  On 13 March 2026, the Court of First Instance dismissed the JR Leave Application (“CFI Decision”).

3.3  The Applicant’s subsequent challenge against the CFI Decision (CACV 247/2026) was dismissed by the Court of Appeal on 25 June 2026.

3.4  On 14 September 2026, the Applicant requested to make a subsequent claim (“SC Request”) which is now under processing by the Immigration Department with priority accorded.

4.  The present detention and its reviews

4.1  As at the commencement of the present detention, given the CFI Decision, there was no legal impediment to the Applicant’s removal by reason of the Updated Removal Policy.

4.2  Following the commencement of the present detention, the Applicant initially indicated her unwillingness to return to her home country and was reluctant to render her cooperation in completing the reentry formalities.  To her credit, the Applicant subsequently cooperated in completing the reentry formalities and a passport (valid until 23 June 2027) was issued by the Consulate General of Vietnam in Hong Kong (“CG”) on 23 June 2026.  Whilst she did render cooperation in completing the reentry formalities, her unwillingness to return to her home country remained steadfast, as expressed at interviews conducted on 27 July, 17 August and 11 September 2026.

4.3  To effect the Applicant’s removal, the Immigration Department had arranged a repatriation flight on 5 October 2026, but the same is now called off by reason of the SC Request.  The Respondent emphasizes that the temporary withholding of the removal operation is a discretion exercised for the benefit of the Applicant, as the SC Request, in and of itself, does not give rise to any legal impediment.

4.4  In the latest review of the present detention conducted on 22 September 2022, the Applicant’s continued detention was considered to be justified by reason of the following broad grounds:

(1)  There was no legal impediment to the Applicant’s removal;

(2)  The SC Request did not give rise to a legal impediment;

(3)  There was no practical impediment as a passport had been issued to the Applicant;

(4)  There was a real absconding risk in the light of the Applicant’s unwillingness to return to her home country;

(5)  The Applicant’s claim that Cousin and Cousin’s husband were willing to act as her guarantors had been taken into account but such factors did not outweigh the factors against the release of the Applicant;

(6)  As regards the health conditions raised by the Applicant, medical consultation had been provided and there was not reason to believe that the Applicant would not receive appropriate medical treatment during her detention if required.

5.  The Applicant’s submissions

5.1  The grounds set out in the Applicant’s written materials may be summarized as follows:

(1)  CACV 247/2026 is still under process (but as noted above, the appeal had already been dismissed by the Court of Appeal on 25 June 2026);

(2)  Even were the result of CACV 247/2026 unfavourable, she has further appeal avenues;

(3)  She has never received any removal/deportation order and her removal cannot be effected within a reasonable time;

(4)  Her friends Mr Bui Quoc Huy and Ms Tran Thi Yen, who are Hong Kong residents, are willing to act as her guarantors and She will stay with Ms Tran at the address provided, if released;

(5)  She herself is willing to put of HK$5,000 as bail money;

(6)  She promises that she will comply with recognizance conditions imposed;

(7)  She is suffering from mental distress for being unlawfully detained;

(8)  Whilst in detention, she is unable to communicate with children in Vietnam;

(9)  She has always been law-abiding and complied with her recognizance conditions.

5.2  At the hearing, the Applicant confirmed the accuracy of the above summary.  She supplemented as follows.  First, she explains that she has received information to confirm that it is still not safe for her to return to her home country.  Secondly, in relation to the SC Request, she met the Duty Lawyer Service on 23 September 2026 and a further meeting has been scheduled to take place the following week.

6.  The applicable principles

6.1  The applicable principles are set out in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99.  I have in particular borne in mind the summary set out at §164 thereof.

6.2  I remind myself that the burden is on the Respondent to an application for a writ of habeas corpus to justify the lawfulness of the Applicant's detention.

6.3  Under Section 32(4A) of the Ordinance, the detention of a person shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including (1) whether the person's removal is directly or indirectly prevented or delayed by any action or lack of action of the person, (2) whether the person poses, or is likely to pose, a threat or security risk to the community, (3) whether the person's removal is directly or indirectly prevented or delayed by any action or lack of action of the person, including the person not obtaining, or not providing assistance to obtain, any authorization from the relevant authorities of a place outside Hong Kong that is required for the person's entry to that place and (4) factors that directly or indirectly prevent or delay the person's removal that are not within the control of the Director.

6.4  The Court of Appeal has provided guidance in Johnson Benjamin v Director of Immigration & Anor [2023] HKCA 1368 on, inter alia, how the court ought to approach a detainee's own unreasonable behaviour or conduct in assessing the reasonableness of the length of his detention.  It is stated at 29(3):

“In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee's own unreasonable behaviours or conducts should not be counted or regarded as an unreasonable period of detention for the purpose of determining whether an originally lawful detention has become unlawful, unless there are other circumstances to show otherwise.  This is so, as if otherwise, it would result in an absurd situation where the more unreasonably and uncooperatively a detainee behaves in seeking to frustrate or delay the procedures or process necessary to prepare for his removal, the more likely he is to be released.  That cannot be the intention of the Hardial Singh principles.”

6.5  In particular, on the issue of a detainee's refusal to cooperate in completing reentry formalities, Johnson Benjamin §37 observed as follows:

“… In our view, even if there is an ongoing non-refoulement claim, there is no reason in principle why it is not reasonable to expect an applicant to cooperate with the relevant authorities to obtain the necessary travel document to facilitate his removal once the non-refoulement claim is disposed of…”

7.  Analysis

7.1  During the present detention, the Applicant is and has been detained pursuant to section 32(3A) of the Ordinance.  It follows therefore that there is and has been prima facie lawful authority to detain the Applicant.

7.2  The question which falls for determination is whether the detention has become unreasonable in all the circumstances, and hence unlawful.  The starting point is the period of detention, namely 188 days, against which the various other factors must be weighed and balanced.

7.3  As regards the Applicant's fear for her own safety if repatriated, 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.

7.4  I accept that, throughout the period of detention, the intention of the Director is to remove the Applicant and that has been the only purpose of the Applicant's detention.  HS1 is satisfied.  I also accept that the Director has acted with diligence and expedition to effect the Applicant's removal.  HS4 is satisfied.  The foregoing is amply demonstrated by the efforts made for a passport to be issued (despite the Applicant’s initial refusal to cooperate), the arrangement of a repatriation flight and the efforts to expedite the resolution of the SC Request.

7.5  I am prepared to proceed on the basis that, although the Applicant had initially refused to cooperate in completing the reentry formalities, such factor is not a weighty factor against the Applicant given that she quickly changed her position.  As the records show, on 8 April 2026, the Applicant already submitted a letter of consent to attend an interview with the CG for verification of her identity.

7.6  However, what has remained unchanged is the Applicant’s unwillingness to return to her home country.  Whilst there is no history of abscondence on the part of the Applicant, I accept the Respondent’s submissions that weight should be given to the assessment of the risk of the Applicant absconding given her unwillingness to return to her home country and the assessment that the offers of guarantors and bail money do not outweigh the factor against her release.  The absconding risk, if it materializes, will defeat the purpose for which the power of detention is conferred. 

7.7  I also take into account the length of the detention and the relevant events.  As at the commencement of, and throughout, the present detention, there was no legal impediment to the Applicant’s removal.  The practical impediment was removed with the issuance of the passport on 23 June 2026.  A repatriation flight had been arranged pending the resolution of these proceedings, which was aborted by reason of the SC Request, but, as noted above, the suspension of the removal operation is a discretion exercised in favour of the Applicant.  It is estimated that the SC Request will be resolved about 8 weeks from the date of the SC Request (ie 14 September 2026).  In my view, there is a realistic timeline for the Applicant’s removal.

7.8  I do not accept the Applicant’s submission that she had never received the Removal Order.  As pointed out by the Repsondent, there is documentary evidence showing that the Removal Order had been served on the Applicant (and acknowledged to be so by the Applicant).

7.9  In relation to the Applicant's claimed health conditions (whether physical or mental), there is no evidence suggesting that the Applicant cannot receive proper medical treatment if needed whilst being detained.  In any event, the Applicant's medical condition does not have the effect of altering his continued and lawful detention to become unlawful: Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 §30.

7.10  Whilst I can understand the inconvenience in the Applicant communicating with her children whilst in detention, it is not a factor to which I attach material weight.

7.11  Overall, weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

8.  Conclusion

8.1  By reason of the above matters, I am satisfied that the Applicant's detention, and likely foreseeable future period of detention (at least until the time when the SC Request is resolved) has been and will remain lawful.

8.2  I therefore dismiss the present application with no order as to costs.