VU VAN DAT v. DIRECTOR OF IMMIGRATION

HCAL 585/2023

[2023] HKCFI 1239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 585 OF 2023

________________________

________________

_________________

D  E  C  I  S  I  O  N

_________________

A.  Introduction

1.  The Applicant is the subject of a Deportation Order issued on 7 September 2011. He has been held in immigration detention since 31 December 2021, pending his removal from Hong Kong. To the date of this hearing, the detention has lasted 495 days, or over 16 months.

2.  On 18 April 2023, the Applicant applied for writ of habeas corpus, seeking his immediate release on the basis that his detention has become unlawful by reference to the Hardial Singh principles.

3.  The Deportation Order prohibits the Applicant from being in Hong Kong “at any time thereafter”. In other words, the prohibition is for life. The Deportation Order remains extant. The Director maintains that the detention of the Applicant is and will continue to remain lawful until his ultimate removal, which has already been fixed for 11 May 2023.

4.  On 19 April 2023, I gave leave for the Director to file and serve his response to the application, and the necessary directions to bring the matter to today’s hearing. At the hearing, the Director was represented by Ms Lynn Hui, Government Counsel, who also signed the initial response. Ms Hui said the initial response was also prepared on behalf of the Secretary for Security. Although the Secretary is not named as a respondent alongside the Director, he was the person who, pursuant to power granted to him under section 32(3) of the Immigration Ordinance, Cap 115 (“Ordinance”), authorised the Applicant’s detention.

5.  The Applicant appeared in person with the benefit of a Vietnamese/English interpreter.

6.  This is my Decision.

B.  Background Leading to the Current Detention

7.  The Applicant is a Vietnamese born in 1972.

8.  On the records, the Applicant has had three periods of illegal stay in Hong Kong. The first period began with his unlawful entry and stay being discovered when he was arrested by the police for suspected criminal offences of which he was eventually convicted and sentenced to imprisonment. He was then deported to Vietnam after he had served his sentence in Hong Kong, which brought the first period period of stay to an end. That first period ran from October 2010 to September 2011.

9.  But two months later, in November 2011, he was arrested in Hong Kong again and was eventually deported in December 2012.

10.  But a few months later, in March 2013, he was sighted and arrested in Hong Kong again. The third period roughly followed the same pattern as the previous two, except the Director was not able to deport him this time because the Applicant raised a non-refoulement claim (“NRC”). In the following decade, the Applicant’s unlawful stay in Hong Kong was tolerated by the Director, whilst his NRC was being resolved.

11.  During this decade-long stay, he was granted immigration recognizance most of the time. The Applicant had to report recognizance to the Director regularly. But he failed to report recognizance on 30 July 2020, and only re-appeared when he was arrested by the police some 16 months later, on 30 December 2021. The police transferred him to the Immigration Department the next day, and this was how the current immigration detention period commenced.

C.  Criminal Record and Absconding Record

12.  During his three periods of stay in Hong Kong, the Applicant has committed various offences, for some of which he was sentenced to imprisonment.

13.  On 15 November 2010, he was sentenced to a total of 16 months’ imprisonment for the offences of possession of offensive weapon, possession of equipment fit and intended for the smoking, injecting, or inhaling of dangerous drug, and remaining in Hong Kong without the authority of the Director after having landed unlawfully in Hong Kong.

14.  On 5 December 2011, he was sentenced to a total of 19 months’ imprisonment for the offences of remaining in Hong Kong without the authority of the Director after having landed unlawfully in Hong Kong, and breach of deportation order.

15.  On 20 March 2013, he was again sentenced to a total of 19 months’ imprisonment for breach of deportation order and remaining in Hong Kong without the authority of the Director after having landed unlawfully in Hong Kong.

16.  On 2 May 2018, he was sentenced to 3 months’ imprisonment for possession of pipe or equipment fit and intended for smoking, injecting and inhaling dangerous drugs.

17.  On 10 April 2019, he was sentenced to 3 months’ imprisonment for possession of dangerous drugs.

18.  On 18 July 2019, he was fined $500 for gambling in a gambling establishment.

19.  On 2 September 2019, he was sentenced to 3 months’ imprisonment for criminal intimidation.

20.  On 17 November 2021, he was fined $1,000 for gambling in a gambling establishment.

21.  As mentioned above, the Applicant had once jumped immigration bail for 16 months. He also has one record of jumping Court bail in June 2019.

D.  NRC and Related Proceedings

22.  The Applicant first raised his NRC in 2013.

23.  By two decisions in 2016, the Director rejected his NRC on all applicable grounds. The Applicant then appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”), which rejected the appeal in 2020.

24.  On 4 February 2022, the Applicant sought leave from the Court of First Instance (“CFI”) to apply for judicial review against the Board’s decision out of time. The leave application was refused on 10 May 2022.

25.  On 20 October 2022, the Applicant applied to CFI for extension of time to appeal against the leave refusal. The CFI refused to extend time on 18 November 2022.

26.  On 28 February 2023, the Applicant renewed his application for extension of time to appeal against the leave refusal before the Court of Appeal (“CA”). The resolution of this application is still pending.

E.  Steps towards removal

27.  As is usual in habeas corpus applications raised by non-refoulement claimants held in immigration detention, the two major obstacles standing in the way of removal have been the Applicant’s NRC and related proceedings and the need to obtain the necessary documents and permission for him to re-enter his country of origin.

E1.  NRC & Related Proceedings

28.  When the detention commenced on 31 December 2021, there was no extant NRC or related judicial review proceedings. But, I think likely as a reaction to being detained, the Applicant instituted the leave application after he had been detained for about a month, on 4 February 2022. By then, the application was about 18 months out of time. This obstacle, however, was soon removed when the CFI dismissed the leave application on 10 May 2022. There followed a period of about 5 months when the Applicant’s removal was free from any NRC related removal obstacle.

29.  That period was ended when the Applicant applied for an extension of time to appeal, on 20 October 2022. But the obstacle was also soon removed when the CFI dismissed the application in less than a month, on 18 November 2022.

30.  Thereafter, there has been no NRC-related removal obstacle. Whilst the Applicant renewed his extension of time application before the CA in February 2023, that is no longer seen by the Director as a removal obstacle following the change of removal policy on 7 December 2022. Under the updated policy, a claimant’s NRC would no longer be seen as an impediment to removal once the NRC has reached the stage of a consequent judicial review challenge having been rejected by the CFI, either by a leave decision or by a substantive decision.

E2.  Re-entry application

31.  To enable the Applicant’s return to Vietnam, the Director would have to obtain the approval from the Vietnamese authorities for the Applicant’s entry into Vietnam, and to replace the Applicant’s expired Vietnamese passport.

32.  The Director started liaising with the Consulate General of the Socialist Republic of Vietnam from 5 January 2022, for the purpose of facilitating the Applicant’s return to Vietnam. On 18 February 2022, the Vietnamese authorities agreed to accept the Applicant’s return. On 30 May 2022, a new Vietnamese passport was issued to the Applicant, with a validity period expiring on 30 May 2023.

33.  Therefore, since the 30 May 2022, all necessary re-entry approval or documents had already been obtained.

E3.  Scheduled Removal on 11 May 2023

34.  On 26 April 2023, the Director secured a seat for the Applicant on a repatriation flight from Hong Kong to Vietnam, fixed for 11 May 2023.

F.  Review of Detention/ Notice of Detention

35.  During the currency of the present detention, the Applicant’s detention was reviewed thrice, on 21 April 2022, 28 June 2022, and 22 November 2022. Continued detention was considered appropriate on each occasion.

36.  In the latest review, the grounds relied upon in support of continued detention are that (a) the Applicant’s removal is going to be possible within a reasonable time; (b) he poses or is likely to pose a threat or security risk to the community; (c) he may abscond and/ or reoffend; and (d) there are no other circumstances in favour of his release.

37.  It appears from the internal documents provided by the Director that a fourth review of detention is being conducted, albeit no decision has been made yet. The Director’s internal documents noted that the Applicant put forward a friend as his guarantor and asked to be released on recognizance on the basis of some chronic illnesses. However, the proposed guarantor turned out to be another non-refoulement claimant, and it was said that the Applicant’s medical concerns had been relayed for follow up to the Tai Tam Gap Correctional Institute. It was concluded that these factors could not outweigh the factors in favour of continued detention.

G.  Applicable Principles

38.  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.

H.  Applicant’s Submissions

39.  In the affirmation filed in support of his habeas corpus application, the Applicant exhibited three pages of what he called “written submissions” and 12 pages of other documents.

40.  In the written submissions, he set out his grounds in support of immediate release by reference to the Hardial Singh principles. In my summary of them:

(1)  For HS1, the Applicant said that the purpose of detention is to effect removal, but the Director has not been taking any action to effect his removal. He also said that the purpose of detention is not to protect the public in Hong Kong which is the job of the Hong Kong police.

(2)  For HS2, he said that his detention has continued for a period which has become unreasonable in all circumstances.

(3)  For HS3, he said his removal cannot be effected within a reasonable time because the Director cannot say when and how he will effect the removal. The Director has not been in contact with the Vietnamese Consulate and there was no assistance for obtaining the necessary travel document.

(4)  For HS4, the Director has not been acting with reasonable diligence to effect the removal. The Director has taken no steps to effect removal.

(5)  There is procedural impropriety because the Director made the decision to continue to detain the Applicant on the assumption that the Applicant had committed crime related to violence.

(6)  The Applicant has a medical history of sexual disease.

(7)  The risk of absconding or reoffending could be said to be low.

(8)  Even though he has obtained a guarantor, the Director does not give any weight on this matter.

(9)  Overall, having balanced all the factors, the originally lawful detention has become unlawful and continued detention could not be justified.

41.  The Applicant made reference to the point that an illegal immigrant in Hong Kong cannot rely on family rights. But I could not make out what he meant or how that could assist him in this application. From the documents provided by the Director, the Applicant has no family connection in Hong Kong. Indeed, a number of the points made by the Applicant in writing are clearly inapt to the facts of this particular case.

42.  At the oral hearing, the Applicant submitted (in my summary of his points):

(1)  It is still dangerous for him to return to Vietnam. This has been recently confirmed to the Applicant in a letter dated 4 May 2023 from his elder sister, who says in her brief summary that she cannot help him solve his problem because of her own financial situation and lack of relationship with officials. In the letter, the sister urges the Applicant to remain in Hong Kong to protect his life.

(2)  If the Director were to insist on removing him on 11 May 2023, as planned, that would be inhumane.

(3)  He has many illnesses, being a carrier of hepatitis A and B, and suffering from HIV in its final stage. He also has a problem with his lungs.

(4)  He is in poor health because of the diseases and often suffers great pain.

(5)  This affects his mental status, which is also deteriorating.

(6)  The medical care available in the detention centre cannot be provided thereby any doctor who specialises in the diseases from which he suffers.

(7)  He is required to take medication all the time.

(8)  He urges the Court to consider his circumstances, both that he cannot return to Vietnam at the moment, coupled with his diseases, and to grant him bail on humanitarian grounds.

43.  I will bear these points in mind in my overall assessment below, and make reference to them as appropriate. But it is important to note that the Court is not concerned on a habeas corpus application with the question as to whether or not the Applicant should be removed from Hong Kong, under the Deportation Order, nor is the Court concerned with the Applicant’s NRC. The central question on a habeas corpus application is whether there is, and continues to be, lawful authority for detention – in this case, detention pending removal.

44.  The burden is on the Director/Secretary to show that the detention is and remains lawful. When considering that question, the Court backs as the primary decision maker as to the reasonableness of the detainee’s continued detention, involving an exercise of judgment and the balancing of different factors – in accordance with the Hardial Singh principles already mentioned.

I.  Whether Detention has become unlawful

45.  The Deportation Order remains extant. 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.

46.  The starting point is that the Applicant has been detained up to today for a period of 495 days, or a little over 16 months. This is a rather lengthy period, and it is against that period that the other factors are to be weighed and balanced. This is because, as the period of detention increases in length, the weight to be given to the other factors and risks will vary.

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

48.  I accept that the Director has always been using the detention powers for the purpose of deportation. The Applicant’s current judicial review application and the likely risks he might pose to society are factors which the Director had to consider in deciding whether the Applicant should continue to be detained or to be released on recognizance. But that does not mean the current detention is not for the purpose of the Applicant’s eventual removal. There is no basis to suggest that the Director detained him for the purpose of protecting the general public of Hong Kong. HS1 is satisfied.

49.  I note the Director’s efforts in obtaining approval for the applicant’s re-entry to Vietnam and replacing his Vietnamese passport. I also acknowledge that the Director’s providing documents to assist the CFI in dealing with the Applicant’s application could be said to have expedited the CFI’s disposal of the Applicant’s NRC-related legal proceedings. However, I am not entirely without hesitation in accepting that the Director has always acted with reasonable diligence and expedition in removing the Applicant. I have scrutinised this point with some care.

50.  There was a period of about five months, from 30 May 2022 to 20 October 2022, when all the re-entry requirements into Vietnam had already been fulfilled and there was no extant NRC nor any related legal proceedings. Also, since the updating of the removal policy on 7 December 2022, the Applicant has again become free from any removal obstacles. Yet, his repatriation flight was only arranged on 26 April 2023, shortly after he had applied for a writ of habeas corpus on 18 April 2023.

51.  But I note that during those ‘windows’, the Director frequently interviewed the Applicant to ascertain his willingness to return to his home country. The Applicant had consistently indicated unwillingness to return. I give some weight to Ms Hui’s submissions that, given the uncooperative manner and the potential vigorous resistance that the Applicant might put up during repatriation operations, as well as the potential need to use force during the repatriation operation, efforts had been made by the Director in discussing with potential airline companies on the feasibility of alternative means to repatriate the Applicant. This is perhaps particularly relevant given the Applicant’s medical conditions, when considering the safety and security of all persons who might be concerned in the repatriation efforts, including the Applicant himself. I note Ms Hui’s submission that two previous repatriations to Vietnam have recently been effected, notwithstanding the vigorous resistance of those persons being repatriated – and that it is proposed to adopt a similar method of repatriation for the Applicant.

52.  Having carefully considered these matters, on balance, I am just persuaded that HS4 is satisfied.

53.  I recognise that the period of 16 months is substantial. But, in light of how the resolution of the two major removal obstacles had unfolded during the period, it is not unreasonable for the Director to hold the view throughout the period that the Applicant could be removed within a reasonable time. Indeed, since 7 December 2022, there have been no removal obstacles, except this habeas corpus application, and a repatriation flight has already been scheduled for two days’ time – and to adopt the methods which aim to protect the safety and security of all concerned, including the Applicant.

54.  I also take into account that the NRC-related proceedings had ended for well over a year before the Applicant had been taken into detention, which appears to have triggered his attempted renewal of that process. The Applicant himself raised the obstacle in this way.

55.  I also agree with the Director’s submissions that there is a real and substantial risk of absconding and re-offending, in view of the Applicant’s criminal and absconding records. The Applicant is a recidivist. Whilst most of his offences were immigration related or drugs related, one of them was possession of an offensive weapon, which was capable of giving rise to violence even if it cannot be described as a violence crime itself. I also accept Ms Hui’s submissions that the Applicant being a third time returnee after having been deported twice tends to add to the risk of absconding when the time for repatriation draws closer. Absconding would frustrate the very purpose for which the power of detention is granted in the first place.

56.  Nor do there seem to me to be any other factors pointing with any weight in favour of release on recognizance. I have taken into account the Applicant’s health condition. I do not do so to assess whether the Applicant should be permitted to remain in Hong Kong on humanitarian grounds, because (as pointed out above) that is not the question to be determined on this application. Rather, I do so to assess the overall circumstances so as to consider whether the detention has become or will shortly become unreasonable, so as to render it unlawful. However, I accept that the Applicant has been under regular medical care – including outside the detention centre in Hospital Authority premises – and has therefore received regular medical specialist treatment. As he himself has said, he is taking various medications to deal with his diseases. There is no reason to think that appropriate medical care will not be available, when necessary, to the Applicant in the short time remaining before the planned repatriation.

57.  Overall, weighing the period of detention – 495 days, or about 16 months – against all the factors, including that repatriation is imminent and that the Applicant should be released very soon, albeit in Vietnam, I am just satisfied that the detention of the Applicant has remained and will remain or continue for period which is reasonable and lawful. HS2 and HS3 are satisfied.

J.  Result

58.  For these reasons, I dismiss the Applicant’s application for writ of habeas corpus.

59.  I make no order as to costs.