PHAM VAN CUONG v. DIRECTOR OF IMMIGRATION

HCAL 1872/2023

[2023] HKCFI 3131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1872 OF 2023

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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 (pursuant to section 19(1)(b) of the Immigration Ordinance Cap 115 (“Ordinance”)) made on 21 January 2020. He has been held in immigration detention since 6 July 2023 pursuant to section 32(3A) of the Ordinance. As at the date of the hearing before me, the Applicant has been detained for a period of 152 days.

1.2  On 17 October 2023, the Applicant applied for a writ of habeas corpus. Directions were thereafter given for the Respondent to file an initial response. At the hearing, the Applicant appeared in person, with the benefit of an interpreter, and the Respondent was represented by Mr Alvin Hor, Government Counsel, who also signed the initial response.

2.  Background

2.1  The Applicant is a Vietnamese national. On 24 July 2014, he surrendered to the Immigration Department for illegal remaining. He claimed to be entered Hong Kong illegally on 15 July 2014. He was released on recognizance on 14 August 2014.

2.2  The Applicant has no known local ties.

2.3  Whilst on recognizance, the Applicant was convicted of theft on 16 August 2022 and was fined HK$1,000. The Applicant does not have any absconding history.

2.4  The Applicant’s recognizance was ceased on 6 July 2023. According to the contemporaneous records, that was because a view was formed that (1) the Applicant’s removal was going to be possible within a reasonable time, and (2) his removal from Hong Kong was imminent and/or immediate repatriation was being arranged for his departure.

3.  The Applicant’s non-refoulement claim (“NRC”) and related proceedings

3.1  On 22 July 2014, the Applicant raised a NRC, which was rejected by the Director of Immigration (“Director”) on 6 July 2016 (“1^st Decision”). On 2 December 2016, the Applicant was invited to provide additional facts (if any) which he considered relevant to his NRC (including any other absolute and no-derogable rights under the Hong Kong Bill of Rights such as its Article 2 (“BOR2”)) within 14 days, which the Applicant did not do so. The Applicant’s BOR2 was rejected on 21 December 2016 (“2^nd Decision”).

3.2  He subsequently made an appeal/petition to the Torturer Claims Appeal Board / Non-refoulement Claims Petition Office (“TCAB”) against the 1^st Decision (out of time) and the 2^nd Decision. On 8 August 2017, TCAB refused the Applicant’s late appeal against the 1^st Decision. The Applicant’s appeal against the 2^nd Decision was dismissed on 15 November 2018. During the hearing before me, the Applicant raised some doubts as to whether he was properly notified of the 1^st Decision. In my view, the Applicant was plainly aware of the 1^st Decision, as it was expressly referred to in the 2^nd Decision (at paragraph 3 thereof).

3.3  On 23 November 2018, the Applicant applied for leave to apply for judicial review against TCAB’s decision of 15 November 2018 (HCAL 2650/2018). His application was dismissed by DHCJ K.W. Lung on 15 March 2022[1]. In the learned Judge’s decision, reference was expressly made to the 1^st and 2^nd Decisions. As is summarized in the learned Judge’s decision:

(1)  TCAB was informed that that the Applicant had been detained in prison at the time when he made his appeal against the 1^st and 2^nd Decisions on 10 January 2017. As the Applicant did not provide any reasons, despite request sent to the Applicant in prison, to justify the delay in appealing against the 1^st Decision, TCAB refused to exercise its discretion to allow the late appeal against the 1^st Decision.

(2)  As regards the 2^nd Decision, TCAB noted, inter alia, that it had doubts on the Applicant’s case that he borrowed loans in Vietnam and found that the moneylender had never put any death threats into action, and thus, TCAB rejected the Applicant’s case that he would be harmed or killed by the moneylender upon refoulement and formed the view that state protection and internal relocation were both available to the Applicant.

(3)  The learned Judge expressly stated that whilst he was of the view that TCAB should entertain the appeal against the 1^st Decision, he concluded that the Applicant had no valid ground to challenge the 1^st Decision and that, in any event, the foregoing would not affect TCAB’s decision of 15 November 2018.

3.4  The Applicant then brought the matter to the Court of Appeal and was not met with any success (CAMP 182/2022). As things presently stand, there is an extant application to the Court of Appeal for leave to bring the matter to the Court of Final Appeal.

4.  Current detention and its reviews

4.1  Shortly after the commencement of the Applicant’s present detention, arrangements were made with the Vietnamese Interview Team in August 2023 for the verification of the Applicant’s identity and the approval for his return to his home country.

4.2  At interviews conducted on 21 July and 22 August 2023, the Applicant expressed his unwillingness to return to Vietnam. Yet, during a phone interview on 23 August 2023, there was apparently a change of heart as the Applicant then expressed his willingness to return to Vietnam.

4.3  On 28 September 2023, a Vietnamese passport (valid until 28 September 2024) was issued to the Applicant.

4.4  Following the issuance of the Applicant’s travel document, at interviews conducted on 6 and 12 October 2023, he reverted to his position that he was unwilling to return to Vietnam, and on the latter occasion, expressed his strong unwillingness to return and his concern for his own safety if repatriated. He stated that he would not cooperate with any removal arrangement.

4.5  On 30 October 2023, the Applicant’s removal was tentatively scheduled to take place in the week of 4 December 2023.

4.6  In the latest review of the Applicant’s detention conducted on 2 November 2023, the result of which the Applicant was notified on 8 November 2023, the broad grounds for his detention were stated to be (1) his removal is going to be possible within a reasonable time, (2) he poses or is likely to pose, a threat or security risk to the community, (3) he may abscond and/or (re)offend, (4) he does not have close connection or fixed abode in Hong Kong and (5) there are no other circumstances in favourable of his release. Reference was specifically made to the fact that there was no longer any legal impediment for his removal and there was no practical impediment either as a valid travel document has been issued. It was considered that there was a substantial risk of absconding due to his unwillingness to return to Vietnam and his imminent removal.

4.7  On 10 November 2023, an air ticket was secured for the Applicant’s flight from Hong Kong to Vietnam on 6 December 2023, namely 2 days after the present hearing.

5.  The applicable principles

5.1  The applicable principles are set out in Harjang Singh v Secretary for Security [2022] HKCA 781. I have in particular borne in mind the summary set out at §164 thereof.

5.2  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.

5.3  Further, 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. The central question is whether the detention has become or will foreseeably become unreasonable in all the circumstances and hence unlawful.

6.  The Applicant’s submissions

6.1  The Applicant’s submissions, in so far as they may be deciphered from his written materials, may be summarized as follows:

(1)  He has been detained since 6 July 2023.

(2)  He does not wish to return to Vietnam.

(3)  He still has an ongoing case pending at the Court of Appeal.

(4)  He appeared to refer to his fear for his own safety, if repatriated.

6.2  At the hearing, he confirmed his reliance on the foregoing matters, with an emphasis on his inability to repay the alleged loans in Vietnam, namely the subject matter of his NRC.

7.  Analysis

7.1  Throughout the Applicant’s detention period, there has been prima facie lawful authority to detain the Applicant pursuant to section 32(3A) of the Ordinance.

7.2  The question which falls for determination is therefore whether the detention has become unreasonable in all the circumstances, and hence unlawful. The starting point is the period of detention, namely 152 days, against which the various other factors must be weighed and balanced.

7.3  I acknowledge that 152 days is objectively not a short period and can also appreciate the Applicant’s surprise at being suddenly taken into detention. However, the foregoing does not give rise to any direct implication as to the lawfulness of the detention. Persons such as the Applicant are released on recognizance, but are always subject to potential ceasing of recognizance, to be detained where appropriate under a power granted by the Ordinance.

7.4  I accept that, throughout the period of detention, the intention of the Director is to remove/deport the Applicant and that has been the only purpose of the Applicant’s detention. HS1 is satisfied.

7.5  I also accept that the Director has acted with diligence and expedition to effect the Applicant’s removal. This is amply demonstrated by arrangements made for the issuance of a travel document, to obtain approval for the Applicant’s return to Vietnam and to secure a repatriation flight. HS4 is satisfied.

7.6  By the time of the commencement of the detention, there was and is no longer any legal impediment to removal, by reason of the Updated Removal Policy. The practical obstacle to removal was the Applicant’s own unwillingness to return to Vietnam. I accept Mr Hor’s submission that had the Applicant chosen to cooperate, his travel document would have been issued earlier, and the Applicant could have been removed (and hence released from detention) earlier. I think Mr Hor is right in his submission that the Applicant has contributed to the length in detention, which factor I take into account and give weight although it has to be said that the delay caused by the lack of travel document is not substantial given the chronology. I also do not think the Applicant’s unwillingness to return to Vietnam is a very material factor, since the arrangement made by the Immigration Department at the end of October 2023 was for the repatriation to take place in early December 2023, and it has not been suggested that the time could have been shortened had the Applicant been willing to return to Vietnam.

7.7  I acknowledge that there is a lack of history of the Applicant absconding. I accept Mr Hor’s submission that taking into account (1) the Applicant’s strong unwillingness to return to Vietnam, (2) his uncooperative attitude, and (3) the Applicant’s lack of local ties, the risk of absconding cannot be considered low, especially in the light of his imminent removal in a couple of days’ time. Absconding would defeat the primary purpose of effecting removal, for which the power to detain has been conferred.

7.8  I acknowledge Mr Hor’s acceptance that the Applicant’s “light” conviction records should not feature prominently in my deliberation.

7.9  In so far as the Applicant seeks to justify his uncooperative attitude by reason of the fear for his own safety if repatriated, it is an attempt to reassert the concerns underpinning his NRC, and as stated above, the court in his habeas corpus application will not look at the merits of any such claim.

7.10  For the above reasons, HS2 and HS3 are also satisfied.

8.  Conclusion

8.1  I am satisfied that the Applicant’s detention, and likely foreseeable future period of detention, has been and will remain lawful.

8.2  As a result, the Applicant’s application is dismissed with no order as to costs.