NGUYEN THI TO UYEN v. DIRECTOR OF IMMIGRATION

HCAL 784/2025

[2025] HKCFI 2460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 784 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 4 February 2020. She has been held in immigration detention since 12 December 2024 pursuant to section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the hearing before me, she has been detained for 184 days.

1.2  This is my decision on the Applicant’s application for a writ of habeas corpus filed on 31 March 2025. At the hearing, the Applicant appeared in person with the benefit of an interpreter. Ms Karen Ngai, Senior Government Counsel, appeared for the Director of Immigration (“Director”).

2.  Background

2.1  The Applicant is a Vietnamese national.

2.2  On 24 November 2015, the Applicant surrendered to the Immigration Department for illegal remaining. She claimed to have entered Hong Kong illegally from the Mainland on 26 October 2015. The Applicant was released on recognizance on 26 January 2016. In 2018, a decision was made not to prosecute the Applicant for the suspected illegal remaining offence.

2.3  The Applicant has no criminal record and there is no previous history of breaching recognizance conditions.

2.4  The Applicant has in her possession a Vietnamese passport valid until 26 October 2025.

2.5  The Applicant has no family connection in Hong Kong but claims that her boyfriend, a Hong Kong permanent resident, is willing to act as a guarantor for her release.

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

3.1  The Applicant’s NRC was rejected by the Director on 28 June 2017. Her subsequent appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was dismissed on 31 May 2019 (“TCAB Decision”).

3.2  On 14 June 2019, the Applicant applied for leave to apply for judicial review against the TCAB Decision (HCAL 1637/2019), which application was dismissed by DHCJ KW Lung on 19 July 2024 (“CFI Decision”).

3.3  On 25 July 2024, the Applicant lodged an appeal against the CFI Decision (CACV 302/2024), the outcome of which is now pending.

3.4  On 22 April 2025, the Applicant made a request for making a subsequent claim under section 37ZO of the Ordinance (“Subsequent Claim”). Under section 37ZO(2) of the Ordinance, a person may only make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that: (1) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn and (2) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

3.5  On 26 May 2025, the Duty Lawyer Service informed the Immigration Department that no legal representation would be provided to the Applicant in her Subsequent Claim request. The Director has accorded priority to the Subsequent Claim, pending the Applicant’s submission of further supporting documents by 10 June 2025. I have considered the Applicant’s written signification. As pointed out by Ms Ngai, the bases of the Subsequent Claim are primarily a repetition of those relied upon in her NRC.

4.  The current detention and its reviews

4.1  During the present detention, 5 interviews were conducted by the Immigration Department with the Applicant at which she persistently expressed unwillingness to return to her home country or to cooperate with removal arrangements.

4.2  In the latest review conducted on 3 June 2025, the Director decided against the Applicant’s release for the following reasons:

(1)  Whilst the result of CACV 302/2024 is pending, it does not present a legal impediment by reason of the Update Removal Policy;

(2)  There is no practical impediment as the Applicant has a valid passport;

(3)  Priority has been accorded to the Subsequent Claim and it is anticipated that the same can be finalized within a reasonable time such that her removal can be effected;

(4)  There is a real risk of the Applicant absconding given her clear unwillingness to return to Vietnam;

(5)  The fact that she has a boyfriend who is a Hong Kong permanent resident does not outweigh other factors against her release.

4.3  A repatriation operation has been scheduled for 18 June 2025, subject to any legal impediment hindering the removal.

5.  The Applicant’s submissions

5.1  The Applicant’s submissions put forward the following matters:

(1)  She is being detained pending the outcome of the NRC, not pending removal;

(2)  The length of her detention has become unreasonable;

(3)  The result of CACV 302/2024 is pending and she has the rights to further challenge any adverse decision by the Court of Appeal and to make a subsequent claim;

(4)  The assessment that she may be removed within a reasonable time is erroneous;

(5)  She does not have a criminal record and does not pose a threat or security risk to the community;

(6)  The assessment that she is likely to abscond is purely speculative;

(7)  She has a boyfriend who is a permanent resident who is willing to act as her guarantor, provide a place of abode and stand as surety with minimum cash amount of HK$10,000;

(8)  She suffers from emotional and psychological trauma for being unlawfully detained.

5.2  The Applicant confirmed at the hearing that the above represent an accurate summary of her written materials. At the hearing, the Applicant supplemented that she fears for her safety if she is returned to her home country and she urged to court to release her pending the result of her various applications and her family’s attempts to resolve the problems at home.

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 the 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 184 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 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. As at the commencement of the present detention, there was neither legal nor impediment to the Applicant's removal. The Applicant’s subsequent actions have since created legal impediments, first by the commencement of the present application and thereafter by the request to make the Subsequent Claim. In relation to the former, the repatriation operation scheduled on 18 June 2025 was arranged on 7 April 2025, shortly after the fixing of the hearing date of the present application, obviously to cater for the possibility of effecting the Applicant’s removal following the conclusion of the present application were the court to find it unsuccessful. In relation to the latter, as noted above, priority has been accorded to the resolution of the Subsequent Claim, with a timetable intended to allow its resolution before the scheduled repatriation operation (Hattanage Moleen Ramani v Hong Kong SAR Government [2025] HKCFI 1337 §§36-37). In my view, the length of the present detention has been prolonged by factors which are not within the control of the Director.

7.4  Indeed as to the latter point set out in the preceding paragraph, at the hearing, I was provided with the Director’s decision dated 12 June 2025 rejecting the Applicant’s request to make the Subsequent Claim (“Determination”), on the basis that there was no significant change of circumstances since the NRC was determined. Insofar as it was suggested by the Applicant at the hearing that she was unable to provide further information whilst detained, such factor was already expressly considered in the Determination (§4 and 12 thereof).

7.5  In the light of her clear criminal record, I accept the Applicant’s submission that she does not pose a threat or security risk to the community or that there is an undue risk of her committing an offence if released.

7.6  However, there is an obvious risk of absconding given the Applicant's reluctance to return to her home country. I do not regard the presence of a “local” boyfriend is sufficient to outweigh the risk. Absconding would defeat the primary purpose of effecting removal, for which the power to detain has been conferred.

7.7  As regards the Applicant’s claim that she is suffering from emotional and psychological trauma, I accept Ms Ngai’s submission that 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 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.

7.8  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 continue to assert the concerns underpinning her NRC (or as here the Subsequent Claim) and the court in her habeas corpus application will not look at the merits of any such claim.

7.9  It is plain from the present material that the length of the present detention has been cause by factors which are not within the control of the Director, but within such limitations, every effort has been made to expedite the resolution of, or minimize the effect caused by, the legal impediments lately created. In these circumstances, I am satisfied that the Director’s assessment that the Applicant’s deportation could be effected within a reasonable time was justified and the period of detention is reasonable in all the circumstances. Weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

8.  Conclusion

8.1  For the above reasons, 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.