NGUYEN MINH DUNG v. DIRECTOR OF IMMIGRATION

HCAL 896/2023

[2023] HKCFI 1637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 896 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant has been a subject of immigration detention, under various sections of the Immigration Ordinance Cap 115 (“Ordinance”), since 29 March 2023.  To the date of this hearing, the detention has lasted 85 days, or a little less than 3 months.

2.  On 8 June 2023, the Applicant applied for a writ of habeas corpus, seeking an order for him to be released on recognizance whilst he is waiting for the Director to deport him. On 12 June 2023, I gave leave for the respondent (“Director”) to file and serve his response and the necessary directions to bring the matter to today’s hearing.

3.  At the hearing, the Applicant appeared in person with the benefit of a Vietnamese/English interpreter.  The Director was represented by Mr Rex Cheung, Senior Government Counsel, who also signed the written initial response.  Mr Cheung said he would also represent the Secretary for Security (“Secretary”), who was also involved in authorising the detention of the Applicant.

4.  This is my Decision.

B.  Immigration Status

5.  The Applicant is a Vietnamese national born on 15 November 1989.

6.  He was once previously repatriated from Hong Kong to Vietnam, but returned.  His presence in Hong Kong was first recorded in 2015, when he surrendered himself to the Department of Immigration (“ImmD”) for the purpose of the lodging a non-refoulement claim (“NRC”).  He claimed that he entered Hong Kong illegally in June 2015.

7.  In February 2017, his NRC was rejected by the Director.  He then appealed to the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“Board”), which rejected the appeal in January 2019.

8.  On that occasion, he did not seek further remedies from the Court, by way of judicial review.

9.  In February 2019, the Applicant was sentenced to 2 months’ imprisonment upon his conviction for possession of a dangerous drug.  In March 2019, upon being discharged from prison, he was repatriated to Vietnam.

10.  I understand that the repatriation was not done pursuant to a removal order.  Whilst the Applicant was shortly detained for the purpose of making enquiry as to whether a removal order should be issued, such an order was eventually not issued.  Thus, it appears that the Applicant’s return was voluntary on that occasion.

11.  However, the Applicant was sighted in Hong Kong again 6 months later.  In September 2019, he surrendered himself to ImmD as an illegal immigrant, and indicated his intention to lodge an NRC in the same month.  His NRC was treated as a what is called a ‘Subsequent Claim’, since the Applicant had already made a similar claim previously.  In November 2019, the Applicant was allowed to make the Subsequent Claim.

12.  However, rather than processing the Subsequent Claim, the Applicant chose to further pursue his original NRC which had already been processed up to the stage of being dismissed by the Board in February 2019.  On the 25 November 2019, the Applicant applied for leave to challenge the Board’s decision by way of judicial review in HCAL 3482/2019. He also formally withdrew his Subsequent Claim via his then legal representative.

13.  HCAL 3482/2019 was eventually disposed of by the Court on 21 December 2022.  As noted in the Decision [2022] HKCFI 3722, the Applicant lodged a letter with the Court in October 2022 in which he said he would “cancel” his judicial review application as his problems in his country had been solved and he could go back now.  The letter was taken as an application to withdraw his leave application and the Court dismissed HCAL 3482/2019 accordingly.

C.  Criminal Record and Absconding Record

14.  Whilst the Applicant’s judicial review application was being processed, he was granted immigration release on recognizance on 1 January 2020.  However, whilst on recognizance, the Applicant was arrested and convicted of numerous offences some of which interrupted his liberty by terms of imprisonment:

(1)  On 11 August 2020, the Applicant was convicted of theft and subsequently sentenced to 4 weeks’ imprisonment.

(2)  On 22 July 2020, he was convicted of gambling in a gambling establishment, and subsequently fined HK$1,000.

(3)  On 21 July 2022, he was convicted of burglary and subsequently sentenced to 22 months’ imprisonment.

(4)  On 15 November 2022, he was convicted of illegally remaining in Hong Kong, and was sentenced to 256 days’ imprisonment, of which 200 days was to run consecutively to the sentence for burglary.

15.  Between the second and third convictions listed above, the Applicant had also again been released on recognizance on 14 September 2020. 

16.  On 29 March 2023, the Applicant was discharged from prison at the end of his latest prison term, and was then passed to ImmD for handling, which marked the beginning of the present period of immigration detention.

D.  Obstacles to Removal

17.  When the present detention commenced on 29 March 2023, his judicial review application had already been dismissed by the Court.  No attempt was made by the Applicant to appeal to the Court of Appeal.  But, in any event, under the updated removal policy, any such appeal would not be treated as an impediment to removal.  In any event, the Applicant had by then made clear his own desire to be repatriated to Vietnam – see below.

18.  The remaining practical obstacles to removal were the need to obtain a replacement passport and the Vietnamese authority’s approval for the Applicant to return.  It may relevantly be noted that when the Applicant first surrendered himself to ImmD in 2015, he was in possession of a valid the Vietnamese passport with validity expiring on 9 June 2025.  However, when the Applicant surrendered himself to ImmD again upon his second entry in September 2019, he was only in possession of a Vietnamese identity card but without a passport.

19.  In any event, ImmD was able to clear these obstacles by 13 June 2023. I am informed that the following steps have been taken by the Director to this end:

(1)  On 27 January 2023, which predated the commencement of the present detention, the Director sent a letter to the Consul of the Socialist Republic of Vietnam, requesting the issuance of a travel document to the Applicant for the purpose of repatriation.

(2)  On 19 April 2023, the Director confirmed with the Vietnamese authority that the Applicant was willing to meet a team from the authority for the purpose of verifying his identity and assessing whether approval for his return to Vietnam should be granted.

(3)  On 26 April 2023, the Applicant was interviewed by the Vietnamese authority for that purpose.

(4)  On 28 April 2023, the Vietnamese authority granted approval for the Applicant to return to Vietnam.

(5)  On 13 June 2023, a Vietnamese passport was issued to the Applicant with validity expiring on 13 June 2024.

E.  Detention Post 13 June 2023

20.  Since 13 June 2023, there have been no removal obstacles standing in the way of the Applicant’s repatriation to Vietnam (except this habeas corpus application).

21.  But the Director has not yet moved to repatriate him.  This is because the Director has decided to remove him by way of “deportation proceedings”, the first step of which is to issue a deportation order under section 20 of the Ordinance. 

22.  On 14 June 2023, the day after all the removal obstacles had been cleared, the Director sought the Secretary’s authorisation to detain the Applicant under section 29(1) of the Ordinance for the purpose of making enquiry as to whether a deportation order should be issued.  Section 29(1) permits detention for such purpose for a period of 14 days.  Such authorization was granted by the Secretary on 15 June 2023.

23.  There appears to have been one review of detention on 25 May 2023, when the Director formed the view that there are grounds for continued detention, taking into account all factors including that: (1) the Applicant’s removal is going to be possible within a reasonable time; (2) the Applicant poses, or is likely to pose a threat or security risk to the community; (3) the Applicant may abscond and/or re-offend; (4) the Applicant does not have close connection or fixed abode in Hong Kong; and (5) there are no other circumstances in favour of his release.

F.  Applicable Principles

24.  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.

25.  The essence is that an originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

G.  The Applicant’s Submissions

26.  Unlike the majority of the immigration detainees that have come before this Court applying for writ of habeas corpus, the Applicant in this case does seem to be genuinely wanting to return to Vietnam as soon as possible. 

27.  In his affirmation filed in support of this habeas corpus application, the Applicant reiterated his willingness to return.  The Applicant said when he was still serving his latest prison term, he had already informed the Director by letter that he wanted to return to his home country, but the Director had done nothing to this end except sending him a holding reply in January 2023.  The Applicant requested to be released while he is waiting for the Director to remove him. 

28.  In essence, the Applicant seems to be saying that if the Director cannot give a proper response to him or actually process his removal, then he should be released pending his repatriation.

29.  The Applicant has further consistently indicated willingness to return in the various interviews conducted by the Director from April to June 2023.  The willingness is also demonstrated in his cooperation in going through the various formalities necessary to facilitate his return.

30.  The Applicant also stated in his application that he promised to report for immigration recognizance whilst awaiting removal.

31.  Mr Cheung did not dispute that that correspondence between the Applicant and the Director did take place.  But he said that the Applicant was well aware of the fact that he did not have a valid travel document back then and steps were taken for this purpose.

H.  Whether Detention has become unlawful

32.  The detention was first authorized by section 32(3A) then section 29(1).  It could not be disputed that 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.

33.  The burden is, of course, on the Director/Secretary to justify the continuing detention as being lawful.  In this regard, Mr Cheung separated his submissions by reference to two periods:

(1)  from 29 March 2023 to 14 June 2023, when the applicant was detained pursuant section 32(3A), which permits the detention of a person against whom a removal order has been issued pending his removal; and

(2)  from 15 June 2023 till now, when the Applicant was detained pursuant to section 29(1) for the purpose of making inquiry as to issuing a deportation order.

34.  Whilst the legal basis authorizing detention has switched from section 32(3A) to section 29(1), I do not think that would have the effect of “re-setting” the clock for the purpose of counting the total duration of detention.  Nor has Mr Cheung suggested that.

35.  Broadly speaking, the ultimate purpose served by section 29(1) is still to facilitate the removal or deportation of a person who is not entitled to remain in Hong Kong.  I will consider the entire period running from 29 March 2023 in resolving this application.

36.  The starting point is that the Applicant has been detained up to today for a period of 85 days, or a little less than 3 months.  It is against that period that the other factors are to be weighed and balanced.

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

38.  I accept that the Director has always been using the detention powers for the purpose of removal or deportation.  HS1 is satisfied.

39.  I also accept, on balance and only just, that the Director has been acting with reasonable diligence and expedition in removing the Applicant.  This most evident in the efforts in procuring the issuance of replacement passport and the approval from the Vietnamese authority to allow the Applicant to return.

40.  But I do think that the period of detention (since 15 June 2023) for the purpose of deportation inquiry might have been eliminated or at least shortened had the Director/Secretary initiated the inquiry earlier.  Indeed, whilst I understand why the Director may prefer there to be a Deportation Order, it was not strictly necessary to obtain such an order where there is an extant Removal Order.  Further, basis for initiating deportation proceedings is the Applicant’s criminal record, of which the Director was aware all along.  It seems that the Director commenced deportation proceedings only when he did, because that was after the Applicant’s passport had been issued and his identity had been formally confirmed.  Mr Cheung suggested that it was normal and usual practice to await a passport, which would of course be needed also for the purposes of booking an air ticket.  But, this is not a case where there was any real issue as to the Applicant’s identity, and I still do not understand why the inquiry needed to await the issue of a passport in this case.

41.  However, I also note that the deportation inquiry has to date only lasted 7 days, and I have no doubt that the Director and the Secretary will conclude the inquiry as soon as possible given that the Applicant is now in detention and is ready and willing to leave Hong Kong.  Mr Cheung informed me at the hearing that the interview for the deportation proceedings took place on 19 June 2023, and it is anticipated that the Director will submit the application for a Deportation Order to the Secretary within a few days.  He also told me that the Secretary would make a decision and, if appropriate, issue the Deportation Order within three weeks, which is the normal sort of timing where the Secretary is busy with a number of applications.  I am afraid I do not know why it should take that long in this particular case, and I think it should be dealt with rather faster than that.

42.  Of course, a further short period would then be needed for the Director to work out the repatriation logistics, such as booking an air ticket, after any obstacles thrown up by the existence of the deportation proceedings have been cleared.  Mr Cheung told me that the whole process ought to be complete within a month or so.

43.  I would hope that it would be completed within roughly half that time, if appropriate focus and a proper sense urgency appropriate to this case is brought to bear.  Assuming that to be so, I conclude on balance that the Director is acting, and the Director and Secretary will act, with reasonable diligence and expedition.  Hence, HS4 is satisfied.

44.  As said, at the commencement of the present detention, the only obstacles were the need to obtain replacement passport and re-entry approval from the Vietnamese authority.  The Director’s liaison with the Vietnamese authority had been productive in the process, and the Applicant was cooperative.  All the obstacles had been cleared by 13 June 2023.  Up to that point, there is no doubt that the period of detention remained reasonable and lawful, and would likely have continued so for any reasonable period to arrange the practicalities of the Applicant’s removal.  As it happens, that additional period has in effect been duplicated by the Applicant being now detained for the purpose of making deportation inquiry.  But, as is now clear, that the inquiry will be concluded soon. 

45.  I do not see any real risk of absconding in this case.  Mr Cheung suggested that the risk comes from the fact that the Applicant has no local connections, and therefore might not be found were he to abscond. I acknowledge that point in general, but it seems to relate to the problem which might be caused from absconding and it does not relate to the identification of a real risk that the Applicant might abscond.  The Applicant has consistently said he wishes to go back to Vietnam.

46.  Nor do I think any great weight is to be placed upon the risk of re-offending, where the previous offences committed by the Applicant were at the relatively minor end of the scale of offences (though I do take into account that they were committed whilst he was previously released on recognizance).

47.  In other words, I do not see the perception of risks of re-offending or absconding as of great weight to be balanced against the detention, at least were it to continue for very much longer.

48.  However, overall, and looking at matters as they presently stand, weighing all the other factors against the period of detention – 85 days, looking at either sub-periods of detention separately or in combination – I am on balance satisfied that the detention of the Applicant has remained and will remain or continue for a period which is reasonable and lawful.  HS2 and HS3 are satisfied.

49.  Nevertheless, I think I should record my understanding and appreciation of what I think is the Applicant’s frustration. He has in effect been saying for months that he wishes to leave Hong Kong, and is dissatisfied with the apparent lack of response, and the ensuing period of detention.  As he put it in his reply submissions, if everything had been handled properly then he would have been removed; but if they are not ready yet to remove him, he wishes to be released on recognizance until they are ready.  It may well be that if the Applicant is not removed or deported within the next two to three weeks, he would have a much stronger basis to demand release on recognizance pending such arrangements for his removal or deportation actually being made.

I.  Result

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

51.  I make no order as to costs.