DOAN VAN VINH v. HONG KONG SAR GOVERNMENT

HCAL 217/2025

[2025] HKCFI 1719

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 217 OF 2025

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DECISION

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1.  Introduction

1.1.  The Applicant is subject to a Removal Order and a Deportation Order respectively dated 8 January 2019 and 14 March 2025.  He has been held in immigration detention since 12 December 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 135 days.

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

2.  Application for adjournment

2.1.  The Applicant has belatedly applied for legal aid on 8 April 2025.  At the hearing, I indicated that I would lift the legal aid stay. These are my reasons for doing so.

2.2.  In Ousmane Issa Boubacar v Director of Immigration [2023] HKCFI 2602, Coleman J also had to grapple with the issue of whether the mandatory legal aid stay of 42 days ought to be lifted in a very similar context, namely a belated application for legal aid by an applicant of a writ of habeas corpus.  As in the present case, the belated application of the legal aid application has the effect of jeopardizing the repatriation flight which had been arranged for the removal of the applicant from Hong Kong.  The learned Judge observed as follows:

“ [7] After considering matters, I refused the adjournment – and, on the assumption that there has been a legal aid application relating to these proceedings which would have triggered an automatic 42-day stay of these proceedings – I lifted the legal aid stay. I did so for the following reasons:

(1) Applications for a writ of habeas corpus are to be heard as soon as is practicable.

(2) But, if a writ of habeas corpus has been issued in respect of a detained person, the person having custody of the detained person must not, until the writ has been discharged or the proceedings are concluded allow the detained person to be removed from Hong Kong: see section 22A(11).

(3) Hence, the practical effect of the making of an application for writ of habeas corpus is to create a legal impediment to removal of the detained person from Hong Kong.

(4) There is an inherent inconsistency between: (1) making an application which seeks immediate release from detention, and which should be heard as soon as possible; and (2) making another application which by its nature would prevent or delay release from detention, whether it is (a) an application for an adjournment, perhaps to seek legal advice, or (b) an application for legal aid which has the effect of triggering an automatic stay of 42 days.

(5) There is also inconsistency or tension between an application which seeks immediate release and a collateral application which frustrates an imminent release in fact already arranged.

(6) In this particular case (see below), the Applicant is scheduled to be released from detention in 5 days’ time, on 18 October 2023, upon his deportation.

(7) Hence, if the Applicant is correct, and his detention has become and/or will become unlawful, his own action in applying for legal aid – thereby triggering the automatic stay – and seeking an adjournment might cause him real unfairness and prejudice.

(8) The counter risk of prejudice is in depriving the Applicant of the potential opportunity to seek and obtain legal representation is significantly less likely to give rise to any real prejudice.

(9) This is because of the approach to habeas corpus applications, where the central question to be determined is whether there is, and continues to be, lawful authority for the detention, where an originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

(10) It is not incumbent on the applicant to demonstrate unlawfulness.

(11) The burden of showing that detention is lawful lies upon the respondent, but the Court is the primary decision maker as to the reasonableness of the detainee's continued detention.

(12) Either continuing detention is reasonable and so lawful, or it is not.

(13) Further, on a habeas corpus application, the Court is not dealing with a non-refoulement claim (“NRC”), and is not deciding whether the applicant should or should not be removed from Hong Kong.

(14)  Instead, the Court is deciding whether the applicant – typically subject to a removal order and/or a deportation order – has been lawfully detained, and can continue to be lawfully detained, pending his removal or deportation from Hong Kong.”

2.3.  I agree entirely the reasons adumbrated by Coleman J. To his credit, the Applicant himself indicated that it was his wish to proceed with the hearing.

2.4.  For the above reasons, I decided to uplift the legal aid stay and the hearing proceeded.

3.  Background

3.1.  The Applicant is a Vietnamese illegal immigrant.  On 21 November 2017, he was arrested by the police and he claimed to have entered Hong Kong illegally on 20 November 2017.

3.2.  On 24 November 2017, the Applicant was convicted of the offences of "using a forged identity card", "remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong" and "taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong" and was sentenced to a total of 15 months' imprisonment.

3.3.  On 15 March 2019, the Applicant was released on recognizance.

3.4.  On 16 June 2021, the Applicant was intercepted for having suspected of taking up unapproved employment.  The Applicant was thereafter convicted of "using a forged identity card" and "taking employment while being a person in respect of whom a removal order is in force", and was sentenced to a total of 16 months' imprisonment.

3.5.  On 25 May 2022, the Applicant was released on recognizance.

3.6.  On 12 December 2024, the Applicant's recognizance ceased.

3.7.  According to information provided by the Applicant in May 2018, his parents, sisters, wife and two children (born in 2012 and 2014 respectively) were all in Vietnam.

3.8.  According to the information provided by the Applicant in March 2025, he does not have local connection in Hong Kong other than his wife and another child born in Hong Kong in 2023.  His wife and the child are both subjects of Removal Orders and are non-refoulment claimants currently released on recognizance.  The Applicant's wife is a Vietnamese national.  She entered Hong Kong illegally on 3 October 2020 (after the Removal Order was made against the Applicant) and was arrested by the Police on 17 October 2020.  Nevertheless, the couple gave birth to their third child in Hong Kong on 29 November 2023 after a Removal Order was made against the Applicant's wife.

3.9.  The Applicant has a Hong Kong resident friend who confirmed to be willing to act as a guarantor for the release of the Applicant

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

4.1.  The Applicant’s NRC, made on 10 May 2018, was rejected by the Director on 16 August 2018.  His appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”) was dismissed on 10 December 2018 (“TCAB Decision”).

4.2.  The Applicant applied for leave to apply of judicial review against the TCAB Decision (HCAL 63/2019), and the application was dismissed on 2 February 2023 (“CFI Decision”).

4.3.  The Applicant’s subsequent challenges against the CFI Decision in the Court of Appeal failed.  At matters presently stand, on 30 August 2024, he is required by the Court of Final Appeal to show cause on or before 27 September 2024 as to why his appeal to the Court of Final Appeal should not be dismissed.

5.  The present detention and its reviews

5.1.  The Applicant’s detention is pursuant to the following sections of the Ordinance:

(1)  From 12 December 2024 to 28 February 2025, he was detained under section 32(3A) of the Ordinance pending his removal pursuant to the Removal Order;

(2)  From 28 February to 13 March 2025, he was detained under sections 29(1) of the Ordinance pending inquiry as to whether a Deportation Order ought to be issued;

(3)  From 14 March 2025 onwards, he has been detained under section 32(3) of the Ordinance pending deportation pursuant to the DO.

5.2.  Throughout the present detention, at interviews conducted on 12, 19 20 and 31 December 2024, 10 January, 14 February, and 6, 21 and 31 March 2025, the Applicant expressed unwillingness to his home country. Despite the foregoing, he did cooperate with the reentry formalities and a travel document was issued on 19 March 2025.  A repatriation flight has been arranged for 28 April 2025.

5.3.  In the latest review conducted on 19 March 2025, the broad grounds stated for the Applicant’s continued detention were as follows:

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

6.  The Applicant’s submissions

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

(1)  His removal cannot be effected within a reasonable time as his application to the Court of Final Appeal is still pending and he has the opportunity to lodge a subsequent claim;

(2)  He does not pose a threat or security risk to the community since all of his previous convictions related to taking illegal employment for which he has served his sentences and is remorseful;

(3)  His friend, a permanent resident in Hong Kong, is willing to stand as his surety/guarantor;

(4)  He is suffering from the emotional and psychological trauma of being detained unlawfully.

6.2.  The Applicant confirmed at the hearing that the above represent an accurate summary of his written materials.  At the hearing, the Applicant supplemented as follows: (1) he fears for his own safety if repatriated, (2) he has always complied with his recognizance conditions, (3) his wish is for him, his wife and child to be removed from Hong Kong together and he promises that the whole family will abide with such removal arrangements and (4) in the meantime and pending that arrangement, he is able to offer $5,000 as bail money.

7.  The applicable principles

7.1.  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.

7.2.  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.

7.3.  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.

7.4.  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."

8.  Analysis

8.1.  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.

8.2.  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 135 days, against which the various other factors must be weighed and balanced.

8.3.  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.

8.4.  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.  As at the commencement of the present detention, there was no legal impediment to the Applicant’s removal by reason of the Updated Removal Policy. The only impediment was a practical one, namely the need for a travel document to be issued.  That was achieved on 19 March 2025 and a repatriation flight was arranged on 1 April 2025 with a departure date accommodating the hearing of the present application.

8.5.  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.

8.6.  I also accept Mr Chan’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.

8.7.  The Applicant’s written materials did not place any reliance on his wife and his child in Hong Kong and it was only at the hearing that he raised for the first time it is his wish that he and his family should be repatriated together.  I do not regard that it is the role of the court to impose upon the relevant authorities on the mechanisms and order of removal. The fact remains that it is accepted by the Applicant that his wife and child will eventually be removed.  I accept Mr Chan’s submissions that the desired family reunification is best effectuated in the Vietnam.  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.”

8.8.  As to any claimed issues affecting the physical and mental health of the Applicant, I accept Mr Chan's submission that, there can be no suggestion that appropriate medical care pending removal is not available to him.  In any event, I am told that there is no record of the Applicant contemporaneously raising any medical complaints at the detention centre,

8.9.  I also agree with Mr Chan’s submission that the fact that the Applicant has a friend who is willing to be his guarantor does not outweigh other factors against his release

8.10.  Overall, weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

9.  Conclusion

9.1.  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.

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