NGUYEN VAN HUONG v. HONG KONG SAR GOVERNMENT

HCAL 2260/2024

[2025] HKCFI 798

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2260 OF 2024

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D E C I S I O N

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1.  Introduction

1.1  The Applicant is subject to a Removal Order made on 26 June 2020. He has been held in immigration detention since 31 October 2024 pursuant to section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”) pending his removal from Hong Kong. As at the date of the hearing before me, he has been detained for 118 days.

1.2  This is my decision on the Applicant’s application for a writ of habeas corpus filed on 26 November 2024. At the hearing, the Applicant appeared in person with the benefit of an interpreter. Ms Lynn Hui, Government Counsel, appeared for the Director of Immigration (“Director”).

2.  Background

2.1  The Applicant is a Vietnamese illegal immigrant. He surrendered to the Immigration Department on 20 August 2015 and claimed to have entered Hong Kong illegally on 18 August 2015. He was subsequently released on recognizance on 15 September 2015. There is no record of any failure to report for recognizance or any criminal conviction.

2.2  On the material before me, prior to the present detention, interviews with the Applicant were conducted in May and July 2024, at which he expressed his unwillingness to return to his home country. On 31 October 2024, a decision was reached to cease the Applicant’s recognizance, on the grounds that (1) his removal was going to be possible within a reasonable time and (2) his removal was imminent and/or immediate repatriation was being arranged for his departure.

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

3.1  The Applicant’s NRC was refused by the Director on 26 July 2018, and his subsequent challenge to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was dismissed on 3 June 2019 (“TCAB Decision”).

3.2  Thereafter, on 5 June 2019, the Applicant applied for leave to apply for judicial review against the TCAB Decision under HCAL 1544/2019. On 13 November 2023, DHCJ To dismissed HCAL 1544/2019[1] (“CFI Decision”).

3.3  The Applicant’s appeal against the CFI Decision (CACV 377/2023) was dismissed by the Court of Appeal on 20 November 2023 (“CA Decision”)[2]. The Applicant’s application made on 27 December 2024 to the Court of Appeal for leave to appeal to the Court of Final Appeal is pending determination.

3.4  In the meantime, on 3 July 2024, the Applicant requested to make a subsequent claim. The said request was refused by the Director on 24 September 2024.

4.  The present detention and its reviews

4.1  Prior to the commencement of these proceedings, at interviews conducted on 14 and 19 November 2024, the Applicant continued to express his unwillingness to return to his home country. Specifically, at the latter interview, the Applicant was informed by the Immigration Department that his repatriation arrangement was underway but the Applicant indicated that he would refuse to cooperate with any repatriation arrangement. As noted above, the Applicant commenced the present proceedings on 26 November 2024 and belatedly made an application on 27 December 2024 to the Court of Appeal for leave to appeal to the Court of Final Appeal against the CA Decision which was made over a year ago in November 2023.

4.2  At subsequent interviews conducted on 31 December 2024, 10 January and 7 February 2025, the Applicant continued to express his unwillingness to return to his home country.

4.3  On 23 January 2025, an interview was conducted with the Applicant’s cousin (referred to as aunt in Vietnamese) and she expressed her willingness to act as the Applicant’s guarantor.

4.4  In the latest review conducted on 24 January 2025, it was considered that the Applicant’s release was not warranted for the following broad reasons:

(1)  The Applicant’s removal is going to be imminent given that there is no outstanding NRC proceedings impeding his removal under Updated Removal Policy and he has a travel document valid until 11 March 2025;

(2)  There is a potential risk of absconding as the Applicant has all along showed unwillingness to return to his home country in the light of his imminent removal;

(3)  The Applicant had received medical examinations on 2 occasions and his medical condition was stable upon his last medical consultation on 3 November 2024;

(4)  The fact that he has a cousin willing to be his guarantor does not outweigh other factors against his release.

4.5  A repatriation flight has been arranged on 26 February 2025, one day after the hearing.

5.  The Applicant’s submissions

5.1  The Applicant’s written materials put forward the following matters:

(1)  The period of detention has become unreasonable;

(2)  His deportation cannot be effected within a reasonable time;

(3)  His NRC is still being processed;

(4)  There is no risk of absconding and he has close connection and a fixed abode in Hong Kong at his aunt’s residence;

(5)  He does not pose a threat or security risk to the community;

(6)  He is willing to comply with any conditions imposed for his release and he is in a position to offer HK$10,000 as bail money.

5.2  At the hearing, the Applicant supplemented as follows. He pointed out that his cousin, the proposed guarantor, was in court to support his application and emphasized that she is a permanent resident in Hong Kong. He further asked to court to allow him to remain in Hong Kong for a “short period” to enable his family to make arrangements to sort out his debt problem which gave rise to his NRC.

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 recently 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."

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 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 Director is to remove the Applicant and that has been the only purpose of the Applicant's detention. This is plain from what has been set out at §2.2 above. 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 Applicant was regularly interviewed, at which he was approached in respect of his willingness to return to Vietnam and a repatriation flight has been scheduled to take place immediately after the hearing. But for the present proceedings, it is clear that the Applicant’s repatriation could have taken place sooner.

7.4  As at the commencement of the present detention, there was no legal impediment to the Applicant’s removal. As the Applicant has a valid travel document, the only practical impediment is the Applicant’s refusal to be returned to his home country. He has since created a legal impediment by commencing the present proceedings and has erroneously (by reason of the Updated Removal Policy) thought that a further legal impediment would be created by making a belated application to challenge the CA Decision.

7.5  I accept Ms Hui’s submission that the commencement of these proceedings is a delaying tactic on the Applicant’s part.

7.6  I also accept Ms Hui’s submission that that there is a risk of absconding given the Applicant has steadfastly expressed his unwillingness to return to his home country. In any event, given the Applicant’s imminent removal (subject to his cooperation), releasing him for one day does not constitute a weighty factor. On this note, I think the Applicant should be aware that refusing to cooperate in the repatriation operation will in all the circumstances hurt rather than aid his interest. As has been noted by Coleman J in Ruz Esmiralde Naguimbing v Immigration Director [2023] HKCFI 2384 at §40, flatly refusing to board the repatriation flight will not improve his chances of being released on recognizance; rather, it might simply prolong his detention.

7.7  As to any claimed issues affecting the physical and mental health of the Applicant, I accept Ms Hui’s submission that, throughout the present detention, the Applicant has had access to medical treatment by in-house medical officer and has been transferred to public hospital for treatment if required.

7.8  As regards the Applicant’s fear for his 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.

7.9  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, has been and will remain lawful.

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