NGUYEN VAN THUY v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 34/2025

[2025] HKCFI 1160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 34 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 made on 20 April 2023 and 6 December 2024. He has been held in immigration detention since 1 August 2024 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 232 days.

1.2  This is my decision on the Applicant’s application for a writ of habeas corpus filed on 3 January 2025. At the hearing, the Applicant appeared in person with the benefit of an interpreter. Mr Rex Cheung, 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 illegal immigrant. On 9 April 2023, the Applicant was arrested by the Police for illegal remaining and was referred to the Immigration Department on the following day.

2.2  Upon enquiries, the Applicant claimed that he had entered Hong Kong illegally from Vietnam via the Mainland on 7 April 2023 and that he came to Hong Kong to avoid his creditor. At that juncture, the information then provided by the Applicant was that his family, including his wife and 3 children, were all in Vietnam.

2.3  On 19 May 2023, the Applicant was released on recognizance. Whilst on recognizance, he was arrested on 3 October 2023 and eventually convicted on 14 December 2023 of the offence of “taking employment while being a person in respect of whom a Removal Order is in force” and sentenced to 15 months’ imprisonment.

2.4  On 1 August 2024, the Applicant was discharged from prison and was referred to the Immigration Department. He has since remained in immigration detention.

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

3.1  The Applicant’s NRC, made on 11 April 2023, was rejected by the Director on 10 August 2023.

3.2  On 19 March 2024, the Applicant’s appeal/petition was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB Decision”).

3.3  On 24 July 2024, the Applicant applied for an extension of time to apply for leave to apply for judicial review against the TCAB Decision (HCAL 1195/2024). On 10 October 2024, DHCJ To dismissed HCAL 1195/2024[1], on the basis that the application had no realistic prospect of success and it would therefore be futile to grant the Applicant extension of time to file the leave application (“CFI Decision”).

3.4  The Applicant’s subsequent out-of-time application made on 5 December 2024 for extension of time to appeal against the CFI Decision was dismissed on 17 January 2025[2], in part on the basis that no appeal ground was advanced by the Applicant.

4.  The present detention and its reviews

4.1  As stated above, present detention commenced on 1 August 2024 following the Applicant having served his term of imprisonment pursuant to the following sections of the Ordinance:

(1)  from 1 August to 19 November 2024, pending removal under the Removal Order pursuant to section 32(3A) of the Ordinance;

(2)  from 20 November to 6 December 2024 for inquiry as to whether the Applicant ought to be deported under sections 29(1) and (2) of the Ordinance;

(3)  from 6 December 2024 to 20 March 2025 pending deportation under the Deportation Order made on 6 December 2024, pursuant to section 32(3) of the Ordinance.

4.2  As at the commencement of the present detention, there were both legal and practical impediments to the Applicant’s removal/deportation from Hong Kong.

4.3  As regards legal impediment, efforts were made to expedite the resolution of HCAL 1195/2024 commenced on 24 July 2024 and those proceedings were swiftly concluded on 10 October 2024. Although the subsequent application to appeal against the CFI Decision did not amount to a legal impediment by reason of the Updated Removal Policy, the present application was commenced on 3 January 2025.

4.4  As regards practical impediment, a travel document was issued to the Applicant shortly after the commencement of these proceedings on 9 October 2024, which was as a result of efforts made for the issuance of that document even before the Applicant was discharged from prison.

4.5  In addition, throughout the present detention, the Applicant has steadfastly expressed his unwillingness to return to his home country. In particular, following the CFI Decision, the Applicant started to claim that his wife and a son were non-refoulement claimants in Hong Kong and he wished to be released to take care of them. I am told that the Applicant’s claimed wife and son have applied for leave to apply for judicial review in respect of their NRCs (HCAL 1566/2022).

4.6  In the latest reviews conducted on 3 and 11 March 2025, the Applicant’s release from detention was considered inappropriate for the following broad reasons:

(1)  The Applicant’s removal was 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)  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.

4.7  As things presently stand, a repatriation flight is scheduled to take place on 24 March 2025.

5.  The Applicant’s submissions

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

(1)  His detention is akin to being imprisoned and the length of his detention has become unreasonable;

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

(3)  He has a friend who is a permanent resident in Hong Kong who is willing to act as his guarantor and provide abode;

(4)  His wife and one of his children are in Hong Kong;

(5)  His continued detention is causing him to suffer from mental and physical fatigue;

(6)  He undertakes not to commit any criminal offence and to abide by his recognizance conditions;

(7)  His NRC is still ongoing and therefore his removal is not going to be possible within a reasonable time;

(8)  His well-being will be at risk if he is repatriated back to his home country.

5.2  At the hearing, the Applicant handed up a letter and supplemented as follows. He reiterated his concerns over his safety if repatriated to his home county, pointing to recent incidents of gangsters having threatened his family. He also said that he would like to be released to take care of his wife and child in Hong Kong. Although his letter refers to “subsequent” and “supplemental” proceedings, he has confirmed that they are all related to further challenges to the higher courts in relation to HCAL 1195/2024.

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 various sections of the Ordinance (identified at §4.1 above). 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 232 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 supported by (1) the efforts made for the issuance of the Applicant’s travel document and (2) the request to the court to expedite HCAL 1195/2024. The foregoing impediments were removed shortly after the commencement of the present detention and the remaining impediments were the Applicant’s reluctance to return to his home country and the commencement of the present proceedings.

7.4  Given the Applicant’s “light” criminal record and the nature of the offence for which he was convicted, I accept the Applicant’s submission that his case is not one which should generate too much concern over him posing a threat or security risk to the community. However, there remains a risk of reoffending, which if transpired, would inevitably delay his removal due to resulting court proceedings.

7.5  I also accept Mr Cheung’s submission that, despite there is no previous history of the Applicant breaching his recognizance conditions, there is a risk of absconding given the Applicant has steadfastly expressed his unwillingness to return to his home country.

7.6  As to the factor that the Applicant’s wife and one of his children are in Hong Kong, the Applicant confirmed at the hearing today that, throughout the course of HCAL 1195/2024, he did not mention about his wife and son and it was only after the determination of HCAL 1195/2024 against him that he started to make reference to them. In any event, I agree with Mr Cheung that, given that they are also non-refoulement claimants, it is not a factor to which I should attach weight, in particular where the Applicant’s repatriation flight has been scheduled to take place imminently. As has been pointed out at Ruz Esmiralde Naguimbing v Immigration Director [2023] HKCFI 2384:

“[38] …Removal will take place tomorrow – and I am not prepared to proceed on the assumption that it will not take place as planned. The benefit to enable the Applicant to reunite with his children for one day in Hong Kong before his departure cannot outweigh the real and substantial risk of his failing to appear at the airport tomorrow.

[39] It may also be important for the Applicant to understand that his natural desire to be reunited with his wife and children is best achieved by reuniting with them outside Hong Kong. The Applicant will be removed/deported. The wife will also be removed, as she is subject to a Removal Order. The children would, presumably, travel as a family with the wife. Facing these inevitable facts, it seems to me that the family as a whole should recognise that the desire to be reunited can and should be achieved outside Hong Kong. It can be achieved quickly, and the Applicant can perhaps be the advance party to facilitate the necessary arrangements. It is in that way that the Applicant can satisfy his desire to spend time with his family and to be a father and husband to them.

[40] Indeed, it is also important for the Applicant to understand that flatly refusing to board the repatriation flight does not improve his chances of being released on recognizance, nor of reuniting with his family. Rather, it might simply prolong his detention and his separation from them. It is partly on that basis that I do not proceed in my consideration of this application on an assumption that the Applicant will refuse the repatriation flight. With respect, it seems to me to be in the interests he asserts for him to take it. Perhaps, on reflection, that point will be seen by the Applicant.”

7.7  As to any claimed issues affecting the physical and mental health of the Applicant, I accept Mr Cheung's submission that, there can be no suggestion that appropriate medical care pending removal is not available to him.

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  Whilst the length of the present detention is objectively not short, that duration has been precipitated largely by the commencement and the time required for the resolution of the present proceedings. In my view, the commencement of these proceedings is, on the evidence, an attempt to motivated by the Applicant’s reluctance to return to his home country.

7.10  I should also point out that the Applicant’s friend has indicated unwillingness to act as a guarantor after having been apprised of the responsibility. Whilst the Applicant wishes to confirm with his friend as to the true position, given the Applicant’s imminent removal, the availability of a guarantor would not significantly affect my assessment.

7.11  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.