DO VAN BINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1501/2025

[2025] HKCFI 3890

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1501 OF 2025

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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 and a Deportation Order respectively dated 28 April 2021 and 25 August 2025. He has been held in immigration detention since 25 April 2025 pursuant to various sections of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the hearing before me, he has been detained for 126 days.

1.2  This is my decision on the Applicant’s application for a writ of habeas corpus filed on 30 June 2025. At the hearing, the Applicant appeared in person with the benefit of an interpreter. Ms Angel Zhi, Acting Senior Government Counsel, appeared for the Director of Immigration (“Director”) and the Secretary for Security (“Secretary”).

2.  Background

2.1  The Applicant is a Vietnamese national. On 15 December 2020, he was arrested by the police for being a suspected illegal immigrant. On the following day, he was referred to the Immigration Department for investigation. He claimed to have sneaked into Hong Kong on 12 December 2020. He was released on recognizance on 7 January 2021.

2.2  Whilst on recognizance, the Applicant was arrested on 6 September 2021 for the suspected offence of “taking up employment while being a person in respect of whom a removal order is in force”. On 4 November 2021, he was convicted and sentenced to 14 months’ imprisonment. He was discharged from prison on 16 June 2022 and transferred to the Castle Peak Bay Immigration Centre for detention. He was released on recognizance on 8 July 2022.

2.3  Whilst on recognizance, the Applicant was again arrested on 5 June 2024 for committing the same offence as above. On 7 June 2024, he was convicted and sentenced to 16 months’ imprisonment.

2.4  On 25 April 2025, the Applicant was discharged from prison upon which the present detention commenced.

2.5  The Applicant has no family ties in Hong Kong. A replacement travel document has been issued to him on 25 July 2025 and a repatriation flight arranged to depart on 8 September 2025.

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

3.1  The Applicant’s NRC was initially withdrawn but allowed to be reopened on 14 April 2022. Eventually, on 27 May 2022, the Director rejected the NRC. His subsequent appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was dismissed on 17 June 2024 (“TCAB Decision”).

3.2  During the present detention, on 8 May 2025, the Applicant belatedly applied for leave to apply for judicial review against the TCAB Decision (HCAL 1080/2025). Upon acceding to the Department of Justice’s request to accord priority to the case, the Court of First Instance dismissed HCAL 1080/2025 on 30 July 2025.

4.  The present detention and its reviews

4.1  The present detention is, and has been, pursuant to the following sections of the Ordinance:

(1)  From 25 April to 13 August 2025, pursuant to section 32(3A) pending removal under the Removal Order;

(2)  From 14 to 25 August 2025, pursuant to section 29(1) for inquiry as to whether the Applicant ought to be deported;

(3)  Fron 25 August 2025, pursuant to section 32(3) pending removal under the Deportation Order.

4.2  Throughout the present detention, the Applicant has persistently expressed his reluctance to return to his home country. However, he did agree to be interviewed by the Vietnamese Interview Team for verification of his identity. Eventually a passport was issued to the Applicant by the Vietnamese authorities on 25 July 2025.

4.3  As stated earlier, a repatriation flight has been arranged to depart on 8 September 2025. In the meantime, on 11 August 2025, the Director applied to the Secretary for authorization of detention for inquiry as to whether he ought to be deported. In his written submission dated 14 August 2025, the Applicant objected to the making of a deportation order and reiterated his reluctance to return to his home country.

4.4  In the latest review of the Applicant’s detention conducted on 22 July 2025, his release was considered to be unwarranted for the following broad reasons:

(1)  The Applicant’s removal was going to be possible within a reasonable time;

(2)  The Applicant posed, or was likely to pose, a threat or security risk to the community;

(3)  The Applicant might abscond and/or (re)offend;

(4)  The Applicant did not have close connection or fixed abode in Hong Kong;

(5)  There were no other circumstances in favour of the Applicant’s release.

5.  The Applicant’s submissions

5.1  In his written materials, the Applicant cites a number of cases without specifically addressing how they are applicable or should be applied to the present case. Insofar as may be deciphered from the written materials, the specific matters put forward by the Applicant are in summary as follows:

(1)  His medical condition concerning his mental stability has worsened since the detention commenced;

(2)  He offers a Hong Kong permanent resident as a guarantor for his release;

(3)  He promises to comply with reporting conditions;

(4)  The present detention has continued for a period of time that in all the circumstances is unreasonable;

(5)  His removal cannot be effected within a reasonable time.

5.2  At the hearing, the Applicant confirmed that the above was an accurate summary of the grounds of his application and he did not have any matters to supplement.

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.”

7.  Analysis

7.1  During the present detention, the Applicant is and has been detained pursuant to the identified sections 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 126 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/Secretary 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/Secretary have acted with diligence and expedition to effect the Applicant’s removal. HS4 is satisfied. The foregoing is amply demonstrated by the matters adumbrated above, including the expedition of the resolution of HCAL 1080/2025 thereby removing the legal impediment (pursuant to the Updated Removal Policy) to the Applicant’s removal, the issuance of a replacement document and the arrangement of a repatriation flight.

7.4  Unlike many other cases which have come before the court, despite his reluctance to return to his home country, the Applicant in the present case to an extent did cooperate in completing the reentry formalities, such that the replacement travel document was issued on 25 July 2025, before the resolution of HCAL 1080/2025. Whilst it is true that DHCJ Levy, in dismissing HCAL 1080/2025, did not accept the Applicant’s explanation that he did not receive the TCAB Decision as he was incarcerated, I am prepared to proceed on the basis that the prosecution of HCAL 1080/2025 was not a calculated attempt by the Applicant to frustrate his removal.

7.5  In the present case, it seems to me that the weighty considerations are the Applicant’s criminal records and the risk of absconding.

7.6  In relation to the former, in the light of the nature of the Applicant’s criminal records, I am prepared to proceed on the basis that he does not pose a serious threat or security risk to the community. However, in the light of his multiple transgressions, the risk of (re)offending remains, which risk if materializes, would inevitably prevent his removal from Hong Kong as a result of consequential investigation and court proceedings.

7.7  In relation to the latter, I accept Ms Zhi’s submission there is a real risk of the Applicant absconding given his professed reluctance to return to his home country. I do not regard the offer of guarantors and the Applicant’s own promise not to abscond have the effect of outweighing the risk of absconding. The risk of absconding, if materializes, would defeat the purpose for which the power of detention was conferred.

7.8  In relation to the Applicant’s claimed physical and mental stress, there is no evidence suggesting that the Applicant cannot receive proper medical treatment if needed whilst being detained.

7.9  In any event, another weighty factor is that, given the fact that a repatriation flight has been arranged and, barring any refusal to cooperate on his part, the Applicant will be released from detention in a few days’ time (albeit in the form of being removed from Hong Kong). Indeed, I hope the Applicant will heed the following observations, namely it is important for the Applicant to understand that flatly refusing to board the repatriation flight does not improve his chances of being released on recognizance, but rather, it might simply prolong his detention.

7.10  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.