TIEU VAN THUYET v. IMMIGRATION DEPARTMENT

HCAL 2171/2025

[2026] HKCFI 140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2171 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 3 June 2020. He has been held in immigration detention since 20 June 2025 pursuant to section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”) pending his removal pursuant to the Removal Order. As at the date of the hearing before me, he has been detained for 201 days.

1.2  This is my decision on the Applicant’s application for a writ of habeas corpus made on 26 September 2025. At the hearing, the Applicant appeared in person, with the benefit of an interpreter. Ms Angela Li, Government Counsel, appeared for the Director of Immigration (“Director”).

2.  Background

2.1  The Applicant is a Vietnamese national born on 28 June 1974. On 8 October 2015, he surrendered to the Immigration Department. Allegedly, he entered Hong Kong illegally on 1 October 2015.

2.2  The Applicant has no family connection in Hong Kong. His wife and family members are in Vietnam.

2.3  The Applicant was released on recognizance on 8 October 2015. Whilst on recognizance, he has not transgressed the law. However, the Applicant had failed to report recognizance since 3 April 2024. On 7 November 2024 and 23 May 2025, the Immigration Department attended the Applicant’s reported address but could not locate the Applicant. On 20 June 2025, the Immigration Department attended the reported address for the third time and was able to intercept the Applicant therein. The Applicant explained that he feared being chased by his creditors for debt repayment. He has since been detained under section 32(3A) of the Ordinance.

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

3.1  The Applicant’s NRC was rejected by the Director on 17 May 2018. His subsequent appeal/petition was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office on 24 April 2019 (“TCAB Decision”).

3.2  On 29 April 2019, the Applicant applied for leave to apply for judicial review against the TCAB Decision (HCAL 1133/2019). The Applicant thereafter withdrew HCAL 1133/2019 on 15 July 2019, on the basis that he was safe to return to Vietnam.

3.3  However, on 3 May 2022, the Applicant applied to reopen HCAL 1133/2019. By a decision dated 2 March 2023[1], DHCJ KW Lung dismissed HCAL 1133/2019 (“CFI Decision”).

3.4  On 9 March 2023, the Applicant lodged his appeal against the CFI Decision, which appeal was dismissed by the Court of Appeal on 13 June 2025[2] (“CA Judgment”).

3.5  Following the commencement of the present detention, the Applicant has taken the following steps:

(1)  On 22 August 2025, the Applicant applied to the Court of Appeal for leave to appeal to the Court of Final Appeal (“Leave Application”);

(2)  On 26 November 2025, the Applicant made a request to make a subsequent claim (“SC Request”).

3.6  As at 22 December 2025:

(1)  The Leave Application was dismissed by the Court of Appeal on 2 December 2025;

(2)  The SC Request is under process, the latest development being that an extension of time has been granted to the Duty Lawyer Service (“DLS”) until 29 December 2025 to consider whether legal assistance would be provided to the Applicant.

3.7  At the hearing, I was provided with the following updates. On 29 December 2025, the DLS informed the Immigration Department that no assistance would be provided to the Applicant in relation to the SC Request. Thereafter, by a letter dated 30 December 2025, the Immigration Department invited the Applicant to submit all available evidence and supporting documents in support of the SC Request on or before 13 January 2026.

4.  The present detention and its reviews

4.1  Throughout the present detention, the Applicant has steadfastly expressed his unwillingness to return to his home country.

4.2  Despite the foregoing, the following events have transpired such that any practical impediment to the Applicant’s removal has been removed:

(1)  On 31 July 2025, the Applicant was interviewed by the Vietnamese Interview Team and approval was granted on 1 August 2025 for the Applicant to return to Vietnam;

(2)  On 29 September 2025, a replacement travel document, valid until 29 September 2026 was issued by the Consulate General of Vietnam in Hong Kong to the Applicant;

(3)  On 16 December 2025, arrangement was made for a repatriation flight to remove the Applicant from Hong Kong on 2 February 2026.

4.3  As stated earlier, the Applicant lodged the Leave Application on 22 August 2025. Thereafter, by a letter dated 27 August 2025, the Applicant’s legal representative requested the release of the Applicant and offered a Hong Kong permanent resident (“Madam Nguyen”) as the Applicant’s guarantor. On 9 September 2025, the Immigration Department confirmed with Madam Nguyen that she was willing to act as a guarantor for the Applicant.

4.4  The Applicant has raised a number of health concerns, both physical and mental, during the present detention. As a matter of record, such health concerns have been referred to the welfare officer for follow-up action and the medical officer has formed the view that the Applicant’s condition was stable.

4.5  In the latest review of the Applicant’s detention endorsed on 16 December 2025 (notice of which was served on the Applicant on 29 December 2025), the Applicant’s continued detention was considered to be justified by the following broad grounds:

(1)  There is no sufficient reason to believe that the SC Request could not be finalized within a reasonable period of time;

(2)  A valid travel document has been issued to the Applicant;

(3)  The Applicant’s unwillingness to return to his home country and his absconding record may cause a substantial risk of absconding in the light of his imminent removal;

(4)  There is no reason to believe that the applicant would not receive appropriate medical treatment during his detention if required;

(5)  The fact that there is a guarantor does not outweigh the factors against the release of the Applicant.

5.  The Applicant’s submissions

5.1  The Applicant’s grounds in support of the present application set out in his written materials may be summarized as follows:

(1)  He will continue to pursue his appeal against the CFI Decision;

(2)  He has made the SC Request;

(3)  He does not have a criminal record;

(4)  He has a guarantor and undertakes to reside with Madam Nguyen at the stated address;

(5)  He is willing to comply with reporting conditions;

(6)  He fears for his own safety if repatriated to Vietnam;

(7)  He suffers emotional and psychological trauma as a result of his unlawful detention;

(8)  Generally, the length of his detention has become unlawful.

5.2  At the hearing, the Applicant confirmed that the above matters represent an accurate summary of the grounds of his application. He supplemented as follows. First, he provided the court with a copy of the SC Request. Secondly, he handed up a letter, the content of which largely repeats the matters already included in the above summary, save one matter. The additional matter raised is that the Applicant alleges that he had encountered difficulties whist in detention in obtaining assistance with his court applications. However, upon the court’s query, despite the professed obstacles, the Applicant confirmed that the Leave Application was filed and processed (and eventually dismissed) by the Court of Appeal.

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 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 201 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. The foregoing is amply demonstrated by the efforts made to remove the practical impediment outlined above. HS4 is satisfied.

7.4  As the CFI Decision was rendered prior to the commencement of the present detention, 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. As observed in Mohammed Afasr Ali v Hong Kong SAR Government [2025] HKCFI 3840, the SC Request itself does not create a legal impediment.

7.5  The only impediment was a practical one due to the need for a replacement travel document to be issued to the Applicant, which impediment has since been removed. As noted earlier, a repatriation flight has been arranged to depart on 2 February 2026. The timing of the repatriation flight is in line with what I understand to be the policy of the Immigration Department, which is to grant an indulgence to refrain from removal pending the resolution of the SC Request. At the hearing, Ms Li confirmed that the timing of the repatriation flight is indeed to make time allowance for the resolution of the SC Request. In my view, there is a real sense of the timescale likely to be involved and there is a sufficient prospect of removal warranting continued detention.

7.6  As the Applicant has not been convicted of any criminal offence, I proceed on the basis that he does not present a threat or security risk to the community. Indeed, in the review of the Applicant’s detention, the contrary has not been suggested.

7.7  However, in the light of the Applicant’s absconding record, I accept Ms Li’s submission that there is a real risk of the Applicant absconding given his professed reluctance to return to his home country. I do not regard the fact that the Applicant has offered a guarantor ameliorates the foregoing risk.

7.8  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.

7.9  In relation to the Applicant's claimed health conditions, 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, whether physical or mental, does not have the effect of altering his continued and lawful detention to become unlawful: Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 §30.

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

8.  Conclusion

8.1  By reason of the above matters, I am satisfied that the Applicant's detention, and likely foreseeable future period of detention (at least until the repatriation flight scheduled on 2 February 2026), has been and will remain lawful. I have no doubt that the present detention will be kept until review, in the event that the SC Request is granted.

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