PHAM THI THU PHUONG v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1382/2025

[2025] HKCFI 4305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1382 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 dated 15 March 2018. She has been held in immigration detention since 14 March 2025 pursuant to section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”). As at the hearing before me, she has been detained for 176 days.

1.2  This is my decision on the Applicant’s application for a writ of habeas corpus filed on 16 June 2025. At the hearing, the Applicant appeared in person, with the benefit of an interpreter. Mr Jinson Cheng, Government Counsel, appeared for the Director of Immigration (“Director”).

2.  Background

2.1  The Applicant is a Vietnamese national who entered Hong Kong illegally on 16 January 2018. On 1 February 2018, she was arrested by the police for illegal remaining in Hong Kong without the authority of the Director.

2.2  As stated earlier, the Removal Order was made on 15 March 2018 and the Applicant’s appeal against the making of the Removal Order was dismissed by the Immigration Tribunal on 18 April 2018. She was thereafter released on recognizance.

2.3  The Applicant has no family ties in Hong Kong.

2.4  Whilst on recognizance, the Applicant was convicted of “Gambling in a gambling establishment” on 22 November 2023 and was fined HK$1,000.

2.5  The Applicant’s recognizance ceased on 14 March 2025, less than 1 month before the dismissal of her JR Application (as defined below) by the Court of First Instance.

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

3.1  On 26 July 2018, the Applicant’s NRC was rejected by the Director. Her subsequent appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was dismissed on 22 November 2019 (“TCAB Decision”).

3.2  On 6 December 2019, the Applicant filed an application (HCAL 3642 of 2019) for leave to apply for judicial review against the TCAB Decision (“JR Application”).

3.3  The JR Application was dismissed by the Court of First Instance on 9 April 2025.

4.  The present detention and its reviews

4.1  Upon the commencement of the present detention and following the dismissal of the JR Application, the Applicant was arranged to attend an interview with the Vietnamese authorities (ie the Vietnamese Interview Team) on 10 April 2025 to verify her identity. On 20 May 2025, a Vietnamese passport, valid until 20 May 2026, was issued to the Applicant.

4.2  During the present detention, the Applicant has persistently expressed her unwillingness to return to her home country.

4.3  A repatriation flight was originally scheduled on 26 June 2025. However, as the Applicant commenced the present application on 16 June 2025, the repatriation was put on hold.

4.4  In the review of detention on 27 August 2025, the Director considered that there were grounds for the Applicant’s continued detention:

(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 or (re)offend;

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

4.5  Another repatriation flight has been scheduled for 19 September 2025, 3 days after the hearing before me. On 1 September 2025, the Applicant made a subsequent claim request (“SC Request”). In the latest review of the Applicant’s detention, although the SC Request does not give rise to an impediment to her removal, a decision has been made to put the repatriation operation on hold, pending the resolution of the SC Request.

5.  The Applicant’s submissions

5.1  In her written materials, the Applicant puts forward the following grounds:

(1)  Her NRC is still being processed, and even were the JR Application determined against her, she has the right to challenge any adverse decision against her to the higher courts and to request to make a subsequent claim;

(2)  She has no record of any criminal conviction connected to violence and has never been associated with crime of a serious nature;

(3)  She has a friend who is a Hong Kong permanent resident who is willing to act as a guarantor for her release;

(4)  She is willing to abide by any recognizance conditions and her friend is willing to stand as surety with a minimum cash amount of HK$10,000;

(5)  Generally, her detention has become unlawful.

5.2  At the hearing, the Applicant confirmed that the above was an accurate summary of the grounds of her application. She supplemented as follows: (1) She has now made the SC Request and (2) her unlawful detention is affecting her mental health.

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 Respondents 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 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 176 days, against which the various other factors must be weighed and balanced.

7.3  Subject to what is set out below, 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. 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 foregoing is amply demonstrated by the matters adumbrated above, including the efforts made to issue a replacement travel document to the Applicant, the arrangements of repatriation flights and expedition of the resolution of the JR Application and now the SC Request (expected to be determined within 8 weeks from the receipt of the SC Request).

7.4  As I understand the position, there is now no longer any legal or practical impediment to the Applicant’s removal. The legal impediment was removed following the resolution of the JR Application by reason of the Updated Removal Policy, and the practical impediment removed following the issuance of a replacement travel document. A decision, however, has been made to temporarily withhold the removal of the Applicant pending the resolution of the SC Request on the basis that it is a discretion exercised out of indulgence and for the benefit of the Applicant. As set out in Eni Carini v Hong Kong SAR Government [2025] HKCFI 3699 §7.7, the exercise of the discretion in that particular way is not inconsistent with the premise that the Applicant is still being detained pending her removal and whether the period of detention is reasonable is a separate matter to be decided based on the Hardial Singh principles and is a fact-sensitive exercise.

7.5  In the particular circumstances of the case, having perused briefly the SC Request, I am satisfied that the view taken by the director that the SC Request is a last-minute attempt on the Applicant’s part to delay her removal cannot be said to be unreasonably held. There does not appear to be any requisite change of circumstances to justify the subsequent claim and the material before me shows that the SC Request is being processed on an expedited basis.

7.6  In the light of the nature of the Applicant’s criminal records, I am prepared to proceed on the basis that it does not give rise to a serious concern that she poses a threat or security risk to the community. However, there remains a risk of (re)offending, which risk, if materializes, may delay her removal by reason of consequential investigations and potential court proceedings.

7.7  Perhaps more significantly, I accept the Respondent’s submission that there is a real risk of the Applicant absconding given her professed reluctance to return to her home country. I do not regard the offer of a guarantor and the Applicant's own promise not to abscond have the effect of outweighing the risk of absconding.

7.8  In relation to the Applicant's claimed mental stress, there is no evidence suggesting that the Applicant cannot receive proper medical treatment if needed whilst being detained. In any event, the Applicant's medical condition, whether physical or mental, does not have the effect of altering her continued and lawful detention to become unlawful: Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 §30.

7.9  As regards the Applicant's fear for her 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 assert the concerns underpinning her NRC and the court in her habeas corpus application will not look at the merits of any such claim.

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 (at least until the resolution of the SC Request) has been and will remain lawful.

8.2  I have no doubt that the present detention will be kept under review as there are a number of permutations which I will refrain from speculating – for example, were the SC Request refused and should the Applicant apply for leave to apply for judicial review against that refusal, the Updated Removal Policy would have the effect of further delaying the Applicant’s removal until the resolution of those judicial review proceedings. It is plain that a further assessment will have to be conducted in the light of the further extended detention.

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