BUI MINH HAI v. DIRECTOR OF IMMIGRATION

HCAL 746/2024

[2024] HKCFI 2049

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 746 OF 2024

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DECISION

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1.  Introduction

1.1  The Applicant is subject to a removal order made on 14 January 2020 (“RO”). He has been held in immigration detention since 1 February 2024 pursuant to section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the hearing before me, he has been detained for 190 days.

1.2  This is my decision on the Applicant’s application made on 10 May 2024 for a writ of habeas corpus. At the hearing, the Applicant appeared in person, with the benefit of an interpreter. Ms Angie Liu, Government Counsel, appears for the Respondent (“Director”).

2.  Background

2.1  The Applicant is a Vietnamese male born in 1991. He was born and raised in Vietnam and is single.

2.2  On 21 May 2015, the Applicant was arrested by the Police for being a suspected illegal immigrant. The Applicant was in possession of his Vietnamese passport, with validity until 26 January 2025, as proof of identity.

2.3  On 22 May 2015, the Police referred the case to the Immigration Department for investigation. The Applicant claimed that he had entered Hong Kong illegally from Vietnam via the Mainland on 20 May 2015. An immigration record check revealed that the Applicant had no arrival movement record.

2.4  On 9 June 2015, a removal order was issued against the Applicant, and the Applicant was repatriated to Vietnam on 24 June 2015.

2.5  The Applicant, shortly after his first repatriation, entered Hong Kong illegally again. On 5 July 2016, the Applicant surrendered to the Immigration Department for illegal remaining.

2.6  The Applicant claimed that he entered Hong Kong illegally on 15 April 2016 from the Mainland and expressed unwillingness to return to his home country. He claimed that he did not have his Vietnamese passport but only the Vietnamese identity card on hand.

2.7  The Applicant was released on recognizance on 26 July 2016.

2.8  On 14 January 2020, the RO was issued against the Applicant. The RO remains valid and subsisting.

2.9  The Applicant does not have a criminal record or a history of failing to comply with his recognizance.

2.10  The Applicant has no family ties in Hong Kong.

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

3.1  The Applicant first made a NRC on 6 July 2016 (“First NRC”). In gist, the First NRC was unsuccessful, and was concluded on 15 June 2022 by the Appeal Committee’s dismissal of his application to the Court of Final Appeal by way of the Rule 7 Procedure in FAMV 486/2021.

3.2  Shortly thereafter, on 11 July 2022, the Applicant made a request for a subsequent claim which was refused by the Director on 26 August 2022 (“August 2022 Decision”).

3.3  On 8 September 2022, the Applicant filed an application for leave to apply for judicial review against the August 2022 Decision (“HCAL 902/2022”).

3.4  In dismissing HCAL 902/2022 ([2023] HKCFI 495), DHCJ Bruno Chan said as follows:

“ [21] In the present case, it is clear from the above that the Applicant’s conduct in seeking persistently to re-litigate his non-refoulement claim without viable grounds amounts to an abuse of process, and that unless a RPO is made against him, to which he was unable to raise any valid objection at the hearing, I am convinced that the Applicant will likely continue to do so and/or to make vexatious appeals, thereby wasting further precious time and resources of the Judiciary.”

3.5  The learned Judge made a Restricted Proceedings Order (“RPO”) against the Applicant. The RPO is in, inter alia, the following terms:

“[(1)] The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to or touching upon or leading to any non-refoulement claim of the Applicant in the High Court, or any appeal, including this Order, without the leave of a Judge of the Court of First Instance;

[(2)] All applications for leave under paragraph (1) shall be made to the Judge in charge of the Constitutional and Administrative Law List or such other Judge as may be designated by the Chief Judge of the High Court to hear cases in the Constitutional and Administrative Law List;

[(3)] At least 7 days before filing any application for leave under paragraph (1), the Applicant do notify in writing each intended defendant or respondent of his intention to make such application, enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced, and if any response is received by the Applicant from any such intended defendant or respondent, that the Applicant do file a copy of each such response together with his said application for leave;

…”

3.6  On 6 March 2023, the Applicant made an application by affirmation to “Please quash RPO”, apparently on the basis that he has “no way to return”. The said affirmation, in so far as it is sought to be an application for leave under the RPO, does not comply with RPO §3. It is therefore unsurprising that, according to the material before me, there is no direction from the court granting leave to the Applicant to make an application to quash the RPO.

4.  Present detention and its reviews

4.1  The Applicant’s recognizance was ceased on 1 February 2024 after a review conducted by the Immigration Department. In that review, the Applicant’s detention was justified on the bases that the Applicant’s removal was going to be possible within a reasonable time and that immediate repatriation was being arranged for his departure.

4.2  Thereafter, a number of interviews were conducted with the Applicant (by the Immigration Department and the Vietnamese Interview Team specifically for the purpose of reentry arrangements) on 8 February, 21 February, 6 March, 8 March, 12 April, 3 May, 10 May, 28 May, 31 May, 4 June, 7 June and 11 June 2024. In summary, during the stated period:

(1)  The Applicant had throughout indicated his unwillingness to return to his home country;

(2)  The Applicant’s emergency travel document was issued on 10 May 2024 (valid until 10 May 2025);

(3)  The Applicant was informed that a repatriation flight has been scheduled on 9 August 2024, which was the date immediately after the present hearing;

(4)  The Applicant raised various health concerns and it is documented that the Applicant received in-house medical treatment and his next medical appointment in a public hospital is scheduled for December 2024; and

(5)  The Applicant informed the Immigration Department, and the Immigration Department confirmed, that there is a Hong Kong resident who is willing to act as his guarantor.

4.3  Two further reviews of the Applicant’s detention were carried out, respectively in 29 April (“April Review”) and 10 July 2024 (“July Review”).

4.4  In the April Review, the Applicant’s continued detention was justified on the bases that (1) there were no further legal impediments for the Applicant’s removal, (2) the only outstanding impediment was a practical one, namely the Applicant’s emergency travel document which was then under process, and (3) there was a real risk that the Applicant may abscond if released on recognizance.

4.5  In the July Review, the Applicant’s continued detention was justified on grounds broadly similar to those stated in the April Review, with the additional consideration that the offer of a Hong Kong resident as a guarantor did not outweigh the factors against release of the Applicant.

5.  The Applicant’s submissions

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

(1)  He seeks to reargue the merits of his NRCs;

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

(3)  His removal cannot be effected within a reasonable period;

(4)  HCAL 902/2022 is still ongoing;

(5)  His detention is affecting his health (both mental and physical) adversely;

(6)  He does not have a criminal record;

(7)  He has always observed the terms of his recognizance;

(8)  He is at risk of being harmed, if repatriated to his home country; and

(9)  He can offer a guarantor who is a Hong Kong resident.

5.2  At the hearing, the Applicant supplemented as follows:

(1)  He confirmed his reliance on the matters stated in the preceding paragraph;

(2)  He stated that he needed time to resolve his problems in Vietnam, and once that has been done, he would return voluntarily;

(3)  He emphasized his health condition and a possibility of getting cancer;

(4)  He pointed to the fact that other detainees have been released under what he perceived to be less meritorious circumstances.

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  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.

7.  Analysis

7.1  During the present detention, the Applicant is and has been detained pursuant to 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 190 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/deport 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. The foregoing is amply demonstrated by arrangements made for his repatriation. There is no longer any legal impediment to the Applicant’s removal pursuant to the Updated Removal Policy. Neither is there any practical impediment as there is now a valid emergency travel document. Short of any unforeseen circumstances, or the Applicant’s own refusal to cooperate, the Applicant is scheduled to depart on the day immediately following the present hearing.

7.4  It seems to me quite clear that following the issuance of the emergency travel document, the only outstanding matter is the resolution of the present proceedings, and hence the repatriation flight has been scheduled for the day following the present hearing. The Applicant’s assertion that his repatriation cannot be effected within a reasonable period is factually inaccurate. It is pertinent to note that the Applicant issued the present application at or around the same time as the issuance of the emergency document.

7.5  In so far as the Applicant understands that HCAL 902/2022 is still ongoing, this is also actually incorrect. By reason of the RPO, and the Applicant’s failure to observe its terms, it seems to me plain that HCAL 902/2022 has already been concluded. By reason of the Updated Removal Policy, those proceedings, following DHCJ Bruno Chan’s dismissal of them on 27 February 2023, no longer amount to a legal impediment.

7.6  I accept the Director’s submissions that an important consideration in the present case is the risk of the Applicant absconding, which would frustrate the very purpose for which the detention power was conferred and exercised. I take stock of the Applicant’s persistent indications throughout the present detention of his willingness to be repatriated, underscored by his attempt to argue the merits of his NRCs in the present application. It seems to me that the assessment of the existence of such risks cannot be said to have been unreasonably reached. I agree with the Director’s assessment that the offer of a guarantor does not have the effect of outweighing the risk of absconding.

7.7  As to the health concerns relied on by the Applicant, given his imminent removal, I do not regard them to be of significant weight. In any event, I accept that the Applicant’s complaints about his health conditions have duly been attended to.

7.8  I do not attach weight to the Applicant’s submissions on the risk of harm if repatriated: §6.4 above.

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

8.  Conclusion

8.1  Therefore, the detention to date has remained lawful, and will remain lawful for this foreseeable future.

8.2  For the above reasons, I dismiss the Applicant’s application for a writ of habeas corpus with no order as to costs.