PHAM VAN QUYET v. IMMIGRATION DEPARTMENT

HCAL 591/2025

[2025] HKCFI 1567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 591 OF 2025

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D E C I S I O N

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A. Introduction

1.  I have before me an application for writ of habeas corpus by the Applicant filed on 10 March 2025 seeking his release from Castle Peak Bay Immigration Centre (“CIC”)  where he is presently being detained (“the Application”).  He has been detained since 12 December 2024 making the period of detention to date 124 days (“the Detention”).

2.  On 12 March 2025, I directed the Director of Immigration (“the Director”)  to inter alia lodge and serve a response to the Application and the Applicant’s Affirmation filed in support of the Application.  A Response/Skeleton Submissions for the Respondent dated 31 March 2025 (“the Response”)  has been lodged.  It was stated in the Response that although the Secretary for Security (“the Secretary”)  is not named as the Respondent to the Application, as the Applicant is being detained under s.32(3)  of the Immigration Ordinance, Cap. 115 (“IO”)  as authorised by the Principal Assistant Secretary for Secretary, the Response was lodged on behalf of both the Director and the Secretary.

3.  Subsequently, a Supplemental Response/Skeleton Submissions for the Respondent dated 11 April 2025 (“the Supplemental Response”)  was lodged to update the court on the latest development of this case since the Response.

4.  At today’s hearing, the Applicant has appeared in person with the benefit of an interpreter.  The Director and the Secretary are represented by Miss Lam, Government Counsel.   The Applicant confirmed that he had been served the Response and the Supplemental Response.

5.  This is my Decision having heard the oral submissions of the Applicant and Miss Lam.

B.  Background

B1.  Immigration status and stay in HK

6.  The Applicant is a Vietnamese national born on 9 April 1988.

7.  The Applicant claimed to have arrived in Hong Kong illegally on 27 November 2017 and was arrested for illegal remaining on 5 December 2017.  He was repatriated to Vietnam on 11 January 2018.

8.  On 5 January 2021, the Applicant was arrested for illegal remaining.  He claimed to have entered Hong Kong illegally on 29 December 2020.

9.  On 19 January 2021, a removal order was made against the Applicant.

10.  On 25 January 2021, he was released on recognizance.

11.  On 28 June 2022, whilst on recognizance, the Applicant was arrested.  On 30 June 2022, he was convicted of “using forged identity card” and “taking employment while being a person in respect of whom a removal order is in force.”  He was sentenced to a total of 15 months’ imprisonment.

12.  On 20 August 2023, a deportation order (“DO”)  was made against the Applicant.

13.  The Applicant’s recognizance was ceased on 12 December 2024 upon review and he was detained under s.32(3)  of IO.

B2.  The Applicant’s Non-Refoulement Claim (“NRC”)  and related legal proceedings

14.  The Applicant first lodged a NRC in January 2021.  On 21 December 2021, the Director refused the Applicant’s NRC.  On 26 January 2023, the Applicant’s appeal against the refusal was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

15.  On 7 July 2023, the Applicant’s application for leave to apply for judicial review against the Board’s decision (“the JR Leave Application”)  was dismissed.  On 12 September 2023, his application for extension of time to file the notice of appeal against the dismissal was dismissed by DHCJ K.W. Lung.  On 12 December 2023, the Court of Appeal dismissed his application for extension of time to appeal against the refusal of the extension of time to appeal.  His application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Appeal on 21 February 2024.  On 24 January 2025, the Registrar was of the opinion that the Applicant’s application discloses no reasonable grounds for leave to appeal and called upon the Applicant to show cause by 21 February 2025 why his application should not be dismissed.

16.  As informed by the Subsequent Response, on 27 March 2025, the Director received the Applicant’s request dated 24 March 2025 to make a subsequent non-refoulement claim (“SC Request”).  The Director has requested priority for determination of the SC Request and it is estimated that it will take 2 to 3 weeks for the Director to determine whether to allow or refuse the SC Request.

B3.  Steps towards the removal of the Applicant

17.  Prior to the Applicant’s detention, the Director conducted various interviews with the Applicant. During all the interviews, the Applicant expressed his unwillingness to leave Hong Kong and claimed that he would not cooperate with the removal arrangement.  He was informed that his uncooperativeness would impede his repatriation progress.

18.  The Applicant’s passport, which was secured from the Consulate General of Vietnam (“CG”)  in July 2023, expired on 13 July 2024.  On 23 December 2024, the Director secured the Applicant’s re-entry and on 3 January 2025, the Applicant’s new Vietnamese passport, valid until 3 January 2026, was issued by CG.

19.  A removal operation was initially scheduled on 20 March 2025 but was subsequently withheld upon the filing of the Application. 

20.  A flight to Hanoi was scheduled for the Applicant’s removal on 15 April 2025 but obviously, because of the SC Request, repatriation will have to be aborted.

B4.  Reviews of Detention

21.  The last review of detention conducted by the Secretary was on 9 April 2025.  Having considered and balancing the following factors, it was decided by the Secretary that release on recognizance was not warranted:

(1)  Under the prevailing removal policy, the Applicant’s removal can be proceeded with despite the Applicant’s application for leave to appeal to the Court of Final Appeal;

(2)  Although in late March 2025 the Applicant requested to make a subsequent NRC, priority is being accorded;

(3)  There is a valid Vietnamese passport which will enable the Applicant’s return to Vietnam upon the determination of the habeas corpus application and the SC Request;

(4)  The Applicant is subject of a deportation order for life and was convicted of offences for which a total of 15 months’ imprisonment was imposed reflecting the seriousness of the offences.  This is the second time he has entered Hong Kong illegally.  Coupled with his clear unwillingness to leave, there is a real and substantial risk of his re-offending and/or absconding which will defeat the purpose of removal; and

(5)  Even taking into account that the Applicant says that he has a Hong Kong permanent resident (“HKPR”)  girlfriend who is willing to act as his guarantor and given that there is no indication that the Applicant cannot receive proper medical treatment while being detained for any health issues, these factors cannot outweigh the grounds for detention.

C.  The Applicant’s submissions

22.  In the Applicant’s Affirmation, essentially the following submissions were made:

(1)  He claimed the purpose of the Detention is not to effect removal;

(2)  He claimed that the NRC is still processing: no decision or hearing date has been fixed for his application to the Court of Final Appeal and he may lodge a subsequent claim if circumstances changes significantly, such that removal is not possible within a reasonable period;

(3)  The Director has not taken active steps to effect his removal including liaising with CG regarding issuance of a travel document;

(4)  He has never committed any offence connected with violence and undertakes he will not commit any offence or engage in illegal activities and therefore will not pose any security risk or threat to the community;

(5)  He has a fiancée who is a HKPR and is willing to stand as his surety/ guarantor and he will reside with her in a fixed abode; and

(6)  The detention has caused unnecessary stress and pressure which is affecting his physical and mental health.

23.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  He said that he did not anything to supplement in respect of the Application.

24.  I will take into account these submissions and give them such weight in the balancing exercise as seems to me to be appropriate.

D.  Applicable Principles

25.  The applicable principles to be applied in an application for habeas corpus are well-established.  They were set out by the Court of Appeal in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99 (see in particular the summary of the principles at §164).

26.  I also remind myself that the burden is on the respondents to an application for writ of habeas corpus to justify the lawfulness of the applicant’s detention.

27.  Under s.32(4A)  of IO, the detention of a person under s.32 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, 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;

(2)  The time required for the issue of the authorization referred to in (1);

(3)  Whether the person poses, or is likely to pose, a threat or security risk to the community; and

(4)  Factors that directly or indirectly prevent or delay the person’s removal that are not within the control of the Director.

28.  Moreover, the Court of Appeal recently provided guidance in Johnson Benjamin v Director of Immigration [2024] 1 HKLRD 582 on how the court ought to approach a detainee’s own unreasonable conduct and acts which caused, necessitated or prolonged any period of detention.  See 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 behaviour or conduct 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 or 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.”

E.  Analysis

29.  With the above principles in mind, I consider whether the Detention is lawful.

30.  There is clear prima facie authority for the detention of the Applicant throughout the Detention under s.32(3)  of IO.  There is no dispute that the DO is valid and extant.

31.  The question which then falls for determination is whether the detention has become unreasonable in all the circumstances and hence unlawful.  That question requires an assessment in accordance with the Hardial Singh principles, namely that:

(1)  The Secretary/Director must intend to deport the person and can only use the power to detain for that purpose (“HS1”);

(2)  The deportee may only be detained for a period that is reasonable in all the circumstances (“HS2”);

(3)  If, before the expiry of the reasonable period, it becomes apparent that the Secretary/Director will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention (“HS3”); and

(4)  The Secretary/Director should act with reasonable diligence and expedition to effect removal (“HS4”).

See Harjang Singh at §164(8).

32.  The starting point is that the period of detention to date is 124 days, against which the other factors must be weighed and balanced.

33.  I accept that the Applicant has been detained for the purpose of deportation, and that the power of detention is being used only for that purpose.  This is evident from the efforts of the Immigration Department (“ImmD”)  in seeking travel documents for the Applicant even before the Detention.  Therefore HS1 is satisfied.

34.  I also accept that the Secretary/Director has acted with reasonable diligence and expedition to effect the Applicant’s removal.  This is evident from ImmD’s proactivity to seek travel documents and continued liaison with CG to secure the return of the Applicant to Vietnam, the repatriation arrangement and repatriation attempts to date and according priority for determination of the belated SC Request.  HS4 is also satisfied.

35.  Given that the NRC has been determined and the JR Leave Application dismissed, such that there is no legal impediment for the Applicant’s removal[1] but for the SC Request, which is likely to be determined within 2 to 3 weeks, and there being a valid travel document secured for the Applicant, it is reasonable to think that deportation can be effected within a reasonable period. 

36.  The belated raising of the SC Request, even though it was foreshadowed at the time of filing of the Application, was clearly unreasonable behavior or conduct which caused or prolonged any period of detention and should not be regarded as an unreasonable period based on Johnson Benjamin cited above.

37.  Furthermore, if the Applicant is uncooperative in the event of removal, any unreasonable behavior which further prolongs detention will not be regarded as an unreasonable period of detention.

38.  I accept the Secretary’s assessment that with the Applicant’s history of offences committed including overstaying and committing offences whilst on recognizance, coupled with the Applicant’s stated unwillingness to return to Vietnam, there is a real risk of the Applicant absconding and/or re-offending.  Although he claims that he has a fiancée who is a HKPR, he also stated in a letter to the Director dated 4 August 2023, that he is married, his father, elder brother, wife and daughter are in Vietnam and he has no relatives in Hong Kong.  If he was to abscond, that would defeat the primary purpose for which the power to detain has been conferred and the intended effect of the DO.  

39.  In relation to the Applicant’s claimed physical and mental conditions, his case has been referred to medical officer at CIC for follow-up.  In view of previous cases decided, there is no reason to believe that the Applicant would not receive proper medical treatment whilst in detention, if required: see e.g. Mansuri, Intekhab Alam and Anor v Hong Kong SAR Government (Unrep)  HCAL 2428/2018, 6 November 2018, per Chow J (as he then was)  at §27.

40.  I do not believe that the Applicant’s offer of guarantor and other undertakings can have the effect of outweighing the matters identified in the preceding paragraphs to justify his release.

41.  Overall, weighing the period of detention against all other factors, HS2 and HS3 are also satisfied.

F.  Conclusion

42.  By reasons of the above, I dismiss the Application with no order as to costs.