NGUYEN TUAN ANH v. THE IMMIGRATION DEPARTMENT

HCAL 1647/2023

[2023] HKCFI 2842

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1647 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant is subject to a Deportation Order made on 25 February 2015, under section 20 of the Immigration Ordinance Cap 115 (“Ordinance”). He is a returned deportee. He has recently been held in immigration detention under section 32(3) of the Ordinance, since 27 July 2023, hence for a period of 104 days to date.

2.  By application filed on 15 September 2023, the Applicant applied for a writ of habeas corpus, seeking his release from detention. I directed the Director of Immigration (“Director”) to file an initial response to the application, and so as to bring the matter on for hearing today.

3.  At the hearing, the Applicant has appeared in person, with the benefit of Vietnamese interpretation. The Director has been represented by Ms Angie Liu, Government Counsel, who signed the initial response.

4.  This is my Decision.

B.  Background

B.1  Immigration Status

5.  The Applicant is a Vietnamese male, born on 22 December 1987.

6.  The Applicant entered Hong Kong illegally from Vietnam via Mainland China on 8 June 2013. The Police arrested him on 10 June 2013 for being a suspected illegal immigrant.

7.  The Applicant was repatriated to Vietnam on 5 July 2013.

8.  The Applicant again entered Hong Kong illegally from Vietnam via Mainland China on 30 April 2014. He was intercepted by the Immigration Department on 12 May 2014 during an anti-illegal worker operation.

9.  On 25 February 2015, a Deportation Order was made against the Applicant on the basis of his criminal convictions. He was deported to Vietnam on 17 March 2015.

10.  Nevertheless, the Applicant again returned illegally to Hong Kong.

11.  The Applicant was arrested by the Police on 29 June 2020 for (1) “breach of deportation order” and (2) “remaining in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully”. He claimed that he had entered Hong Kong illegally on 21 October 2019.

B.2  Criminal Record

12.  During the second entry of the Applicant, he was convicted on 14 May 2014 of the offences of “Using a forged identity card”, “Possession of forged identity card” and “Taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully” and was sentenced to a total of 15 months’ imprisonment.

13.  During the present entry of the Applicant, he was convicted on 16 July 2020 of the offences of “Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong” and “Breach of deportation order” and was sentenced to a total of 18 months’ imprisonment.

B.3  Applicant’s Non-refoulement Claim (“NRC”)

14.  The Applicant lodged a NRC on 19 December 2020. It was rejected by the Director on 25 May 2021. On 19 August 2021, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) dismissed the Applicant’s appeal/petition.

15.  On 26 October 2021, the Applicant’s application for leave to apply for judicial review to challenge the decision of Board was refused by the Court of First Instance (“CFI”).

16.  Subsequent attempts have been made by the Applicant to take the matter further on appeal. On 11 November 2022, the Applicant filed an application (FAMV 568/2022) to the Court of Final Appeal (“CFA”) for leave to appeal against the Court of Appeal’s decision of dismissing his notice of motion for leave to appeal to the CFA handed down on 3 November 2022. That application is currently under processing.

17.  However, under the updated removal policy which took effect from 7 December 2022, and as a result of the decision of the CFI, there is no legal impediment to removal/deportation of the Applicant arising from his NRC or any related Court proceedings.

B.4  Efforts at Removal

18.  Since June 2021, the Director has been making efforts on the issuance of the Applicant’s travel document, even before the current detention. On 29 June 2021, 23 August 2021, 2 November 2021, 2 December 2021, 14 December 2021, 18 January 2022, the Director conducted interviews with the Applicant. During the interviews, the Applicant expressed his unwillingness to return to Vietnam.

19.  During the interview with the Applicant on 8 October 2021, the Director secured the consent letter, re-entry application and photo of the Applicant for seeking a replacement travel document to facilitate the Applicant’s repatriation.

20.  Liaison between the Director and the Consulate General of Socialist Republic of Vietnam (“Consulate”), regarding the Applicant’s application for a travel document, began on 19 October 2021. On 22 February 2022, Vietnam’s authorities’ approval dated 18 February 2022 for the Applicant’s return was obtained by the Director. On 27 June 2022, a Vietnamese passport with validity until 27 June 2023 was issued to the Applicant.

21.  On 27 July 2023, on the ground that the removal of the Applicant was imminent, the Director ceased the recognizance of the Applicant, who has since then been detained under section 32(3) of the Ordinance pending removal.

22.  On 10 August 2023, the Applicant filed a written submission dated 7 August 2023, claiming that (1) he wished to be released on recognizance to take care of his elderly mother, and (2) his “sister” agreed to be his guarantor.

23.  The mother of the Applicant is a Vietnamese illegal immigrant in Hong Kong. After clarification, the claimed “sister” is only a friend of the Applicant and is a non-refoulement claimant.

24.  On 18 August 2023, after liaison with the Consulate, the passport of the Applicant was renewed with the validity until 18 August 2024.

25.  On 3 October 2023, the Director arranged the repatriation flight of the Applicant for 9 November 2023.

B.5  Review of Detention

26.  On 4 October 2023, a recent review of detention was conducted and it was considered that there were grounds for continued detention, which included inter alia (1) the repatriation of the Applicant of the Applicant is imminent and the prospect of his removal is clear, (2) considering that the Applicant had re-committed various types of immigration offences, there is a risk for him to commit further criminal offence if released on recognizance, (3) he is unwilling to return to his home country and had record of using / possessing forged identity card, so there is a considerable risk of his absconding if he is released on recognizance; (4) his claimed connection in Hong Kong does not constitute any grounds which sufficiently outweigh those grounds which are in support of his continued detention.

C.  Applicable Principles

27.  The principles applicable on an application for writ of habeas corpus in cases with the present context are well-established. They have been summarized by the Court of Appeal in its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781. The case can be read for its full reasoning and explication of the correct approach, but at §164 the Court offered a summary of the principles which should be adopted and which can be applied as appropriate to the particular circumstances of any individual case.

28.  As always, it is important to remember that the burden is on the respondent to an application for writ of habeas corpus to justify the continued lawfulness of the detention.

D.  Applicant’s Submissions

29.  The Applicant’s partially hand-written grounds for his application, as provided with the application itself, might be said to be in relatively standard form for most of the grounds, essentially copied word for word from numerous previous similar applications. The general points made can be summarised as follows:

(1)  The purpose of detention is to effect removal and the power to detain can only be used for that purpose, rather than protecting the public.

(2)  Detention has continued for a period of time which is unreasonable.

(3)  No proper consideration has been given to the period within which removal can properly be effected, and whether that constitutes a reasonable time.

(4)  There is procedural impropriety. There has been a failure to take into account and give weight to the considerations, representations and submissions made by the Applicant.

(5)  The Director’s decision to detain the Applicant is based on the assumption that his criminal convictions are of serious nature.

(6)  There are outstanding legal proceedings, and there may be still further proceedings to attempt.

(7)  Without any criminal conviction of violent nature, the Applicant cannot be said to be likely to pose a security risk to the community.

(8)  Arguing about risks of absconding by reference to what “may” happen is not factual.

(9)  As to the Applicant not having local connections or a “fixed abode” in Hong Kong, it is contradictory to immigration policy that an illegal immigrant could not rely on humanitarian consideration.

(10)  The current detention has become unlawful as the Applicant was detained not pending removal, but waiting for final determination of his NRC.

(11)  The Director has not taken active steps to effect the Applicant’s removal.

(12)  The Applicant was released under recognizance, and his past criminal convictions could not be relied on for his current detention.

30.  The Applicant also gave some detail as to why he says that he is under the risk of being beaten, tortured and killed by his creditors and gangsters in Vietnam, and that his wife will be in danger, and that he also has difficulties in finding a new place to live in Vietnam and getting a job there. But those matters are not relevant to the current application, which is not concerned with the Applicant’s NRC and whether the Applicant should or should not be removed from Hong Kong to Vietnam. The question for consideration on this application is whether the Applicant has been lawfully detained, and can continue to be lawfully detained, pending his removal from Hong Kong.

31.  At the hearing, one of the Applicant’s main concerns seemed to be the answer to his question as to why he was suddenly arrested and taken into detention when walking in the street, and when he had not committed any crime. Of course, as Ms Liu said in her submissions, the answer to that question is that the Applicant was not simply arrested in the street, but his release on recognizance was ended and the recognizance ceased when the Director formed the view that the Applicant could be removed within a reasonable time – and against the perceived risks of absconding and so forth as removal became imminent.

32.  The Applicant also said that he had an elder brother who holds a Hong Kong permanent identity card, who could be his surety so that he could be given ‘bail’, whilst he awaited the result of his NRC.

33.  The Applicant further stated that he could not go back to Vietnam, and would like to stay in Hong Kong.

34.  Other than the NRC-type points, I take the various points into account, and give them the weight that seems to me to be appropriate in the balancing exercise below.

E.  Whether Detention is Unlawful

35.  The Deportation Order made against the Applicant is valid and extant. Further, the offences committed by the Applicant are deportable offences. There has been clear prima facie lawful authority to detain the Applicant throughout the current period of detention, under the Ordinance as identified above.

36.  Therefore, the question arises as to whether the overall circumstances have rendered a previously lawful detention now to be unlawful. This is to be assessed by reference to the Hardial Singh principles, which assessment I can perform below.

37.  The starting point is to bear firmly in mind the period of detention to date – here 104 days – against which all other factors are to be weighed and balanced.

38.  I accept that the Director intends to remove the Applicant from Hong Kong at the earliest possible opportunity, and has used the power to detain only for that purpose. HS1 is satisfied.

39.  I also accept that the Director has been acting with reasonable diligence and expedition to effect the Applicant’s removal from Hong Kong. This is evidenced by the liaison with the Consulate to obtain a travel document and the necessary approval, to facilitate the Applicant’s re-entry. Now that the travel document has been obtained and renewed, the Director has made arrangements for a repatriation flight on 9 November 2023, within the validity period of the travel document. HS4 is satisfied.

40.  As to the paramount factor of the risk of absconding, there seems to me to be a clear and substantial risk. The Applicant has committed offences in breach of the Deportation Order. Further, the Applicant has made known his unwillingness to return to Vietnam, and I accept Ms Liu’s submission that, now that the Applicant is faced with imminent removal, he may prefer to abscond rather than be repatriated.

41.  I have taken into account the Applicant’s submission that he is “elder brother” could stand as his surety for release on recognizance. But I note – by reference to documents handed up by Ms Liu during the hearing – that (1) the Applicant had first suggested such a person standing as surety, when his solicitors wrote to the Director on 2 November 2023; (2) that letter suggested the person concerned was the “brother-in-law” of the Applicant as the husband of his “sister”, but (3) the Director’s enquiries have confirmed that the “sister” is not a blood relative of the Applicant, and both she and her husband are merely friends of the Applicant. But, even assuming that the husband is willing to stand as surety for the Applicant, I do not think that is a significantly weighty factor in the consideration. Instead, on the other materials I have already canvassed, there seems to me to remain a significant risk that, if the Applicant were to be released today, he would failed to appear for his repatriation flight on 9 November 2023.

42.  If the Applicant were to be released but then abscond, that would defeat the very purpose of the detention and the ability to give effect to the Deportation Order.

43.  I also accept that the Applicant’s previous criminal record identifies some risk of re-offending. Were he to re-offend and face a period of imprisonment, that would also delay his removal from Hong Kong.

44.  Most importantly, removal of the Applicant from Hong Kong is now imminent – just 2 days away.

45.  Balancing all the various factors against the length of detention to date (104 days), and the likely foreseeable future period of detention (a real timescale of just 2 days), I conclude that the Applicant has been and will be detained only for a period which is reasonable in all the circumstances. HS2 and HS3 are satisfied.

46.  The detention has been, and remains, lawful.

F.  Result

47.  The Applicant’s application for writ of habeas corpus is dismissed, with no order as to costs.