TRAN THI LUA v. IMMIGRATION DEPARTMENT

HCAL 666/2026

[2026] HKCFI 3492

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 666 OF 2026

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DECISION

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A.  Introduction

1.  I have before me an application for writ of habeas corpus filed by the Applicant on 31 March 2026 seeking her release from Nei Kwu Correctional Institution (“NKCI”)  where she is presently being detained (“the Application”).  She has been detained since 20 December 2025 making the period of detention to date 178 days (“the Detention”).

2.  On 10 April 2026, I directed the named respondent to the Application, to inter alia lodge and serve a response to the Application and the Applicant’s Affirmation filed in support of the Application. 

3.  A Response/Skeleton Submissions for the Respondent dated 28 May 2026 (“the Response”)  has been lodged.

4.  At today’s hearing, the Applicant has appeared in person with the benefit of an interpreter.  She has confirmed that she has been served the Response and two bundles of documents prepared by the Department of Justice (“DOJ”)  on behalf of the Respondent.

5.  This is my Decision having heard the oral submissions of the Applicant and Mr Mok, Government Counsel, for the Respondent.

B.  Background

B1.  Immigration status and stay in HK

6.  The Applicant is a Vietnamese national born on 23 May 1994.

7.  On 3 August 2021, the Applicant was arrested by the Police in Hong Kong for being a suspected illegal immigrant.  She was in possession of her Vietnamese identity card.  She was referred to the Immigration Department (“ImmD”)  for investigation.  Upon enquiries, she claimed to have illegally entered Hong Kong on 2 June 2021.

8.  On 17 August 2021, a removal order (“RO”)  pursuant to s.19(1)(b)  of the Immigration Ordinance, Cap. 115 (“IO”)  was issued against the Applicant. 

9.  On 19 August 2021, the Applicant was released on recognizance.

10.  Since 26 September 2024, the Applicant failed to report recognizance.

11.  On 8 July 2025, the Applicant was arrested by the police for a suspected shop theft offence and was granted court bail.

12.  On 9 July 2025, the Applicant was referred to ImmD for detention.  She was released on recognizance on 21 July 2025.

13.  Since 13 November 2025, the Applicant failed to report recognizance.  She approached the recognizance office of ImmD on 27 November 2025 and requested resuming recognizance.

14.  On 10 December 2025, the Applicant was convicted of 4 counts of theft and sentenced to a total of 14 days’ imprisonment.

15.  Upon discharge from prison on 20 December 2025, the Applicant was detained at Castle Peak Bay Immigration Centre and since 5 February 2026 until present at NKCI.

B2.   The Applicant’s Non-refoulement Claim (“NRC”)  and related legal proceedings

16.  On 20 August 2021, the Applicant indicated her intention to lodge a NRC but the NRC was rejected by the Director of Immigration (“the Director”)  on 27 April 2022 (“the Director’s Refusal”).

17.  On 6 May 2022, the Applicant appealed against the Director’s Refusal but the appeal was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office on 24 February 2023 (“the Board’s Decision”).

18.  On 3 October 2023, the Applicant applied for leave to apply for judicial review against the Board’s Decision (“JR Leave Application”).

19.  On 29 January 2026 and 20 April 2026, DOJ wrote to the High Court requesting priority to be accorded to the JR Leave Application.

20.  The JR Leave Application was heard on 3 June 2026.

21.  By letter dated 4 June 2026, the Applicant has been informed that Deputy High Court Judge K.W. Lung estimates that judgment will be ready for handing down as soon as possible or in early August 2026.

B3.  Steps towards the removal of the Applicant

22.  On 23 December 2025, the Applicant was interviewed and informed of the re-entry seeking arrangements.  She agreed to attend interview with the Vietnamese Interview Team (“VIT”).

23.  On 30 December 2025, when interviewed by ImmD, the Applicant indicated her refusal to return to Vietnam.  She maintained her refusal to return in subsequent interviews by ImmD (on 24 February 2026, 19 March 2026 and 28 April 2026).

24.  On 8 January 2026, the Applicant was interviewed with VIT for identity verification.

25.  On 9 January 2026, VIT granted approval for the Applicant to return to Vietnam.

26.  On 27 February 2026, the Vietnamese Consulate General (“CG”)  issued to the Applicant a Vietnamese passport valid until 27 February 2027.

B4.   Reviews of Detention

27.  The last review of detention was conducted by the Director on 20 March 2026.  Having considered and balancing the following factors, it was decided that the release of the Applicant on recognizance was not warranted:

(1)  The JR Leave Application could be determined in the foreseeable future and with a valid passport, should she cooperate, the Applicant could be removed within a reasonable period of time;

(2)  The Applicant was convicted 4 counts of theft and had absconding records, coupled with her unwillingness to return, it is considered that she is likely to pose a threat to the community and there is a risk of re-offending and absconding; and

(3)  The provision of a guarantor has been taken into consideration as well as the length of detention but did not outweigh the other factors in support of continued detention.

C.   The Applicant’s Submissions

28.  In the Applicant’s Affirmation, the following submissions were made:

(1)  ImmD has failed to give her the time of her removal;

(2)  She is unwilling to return to Vietnam;

(3)  There has not been any decision in respect of the JR Leave Application and she has the opportunity to appeal and lodge a subsequent claim;

(4)  She has not committed any offence connected to violence or committed crimes of a serious nature.  She is willing to give an undertaking not to commit any offence or engage in illegal activities and therefore does not pose a risk to security or to the community if released;

(5)  She has an aunt who is a Hong Kong permanent resident willing to stand as her guarantor and if released she will reside with her.  Her aunt is elderly and in poor health. She should be released to take care of her.

(6)  She is also willing to give an undertaking to report to ImmD as required, live at a fixed abode with her aunt and comply with any conditions as the Director thinks appropriate;

(7)  The Detention is unlawful as she is not being detained pending removal but final determination of the NRC;

(8)  If returned, she faces the risk of being torture or killed;

(9)  The Director has not taken active steps to effect her removal;

(10)  She suffers from high blood pressure and previously fainted and has been hospitalized.  Every day she is going through the emotional and psychological trauma of being unlawfully detained and further detention is affecting her physical and mental health; and

(11)  She complains about the conditions of her detention which is like a prison.

29.  At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of her submissions.   

30.  I will take into account these submissions and give them such weight in the balancing exercise as seems to me to be appropriate.

D.   Applicable Principles

31.  The applicable principles to be applied in an application for habeas corpus are well-established.  They were set out by the Court of Appeal in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99 (see in particular, the summary of the principles at §164).

32.  I also remind myself that the burden is on the respondent to an application for writ of habeas corpus to justify the lawfulness of the applicant’s detention.

33.  Under s.32(4A)  of IO, the detention of a person under s.32 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, 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;

(2)  The time required for the issue of the authorization referred to in (1);

(3)  Whether the person poses, or is likely to pose, a threat or security risk to the community; and

(4)  Factors that directly or indirectly prevent or delay the person’s removal that are not within the control of the Director.

34.  Moreover, the Court of Appeal recently provided guidance in Johnson Benjamin v Director of Immigration [2024] 1 HKLRD 582 on how the court ought to approach a detainee’s own unreasonable conduct and acts which caused, necessitated or prolonged any period of detention.  See at §29:

“(1)  It is plain that the relevant relatively lengthy period of immigration detention is substantially caused and necessitated by the applicant’s own unreasonable conduct and acts in significantly delaying the disposal of his NRC. In other words, had he pursued his NRC reasonably diligently, as he ought to have, he would most likely have been ready to be removed expeditiously upon his release from prison. As stated by the Judge at [31] of the Written Judgment, the Liberian Embassy would be able to issue the applicant the replacement passport in 2 weeks once all the formalities have been completed, and in fact, it was the applicant’s own case that he would be able to obtain the replacement passport even quicker. In the premises, the applicant’s further frustration of the replacement of his passport has therefore further compounded the delaying effect caused by his unreasonable conduct in his pursuit of the NRC.

(2)  In the circumstances, the Judge’s emphasis on the relatively long period of the detention in the present case as the starting and in effect the tipping point to show that the detention had become unreasonably excessive simply cannot be right.

(3)    In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee’s own unreasonable behaviour or conduct 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 or 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.”

E.   Analysis

35.  With the above principles in mind, I consider whether the Detention is lawful.

36.  There is clear prima facie authority for the detention of the Applicant throughout the Detention under s.32(3A)  of IO pending her removal under the RO.  There is no dispute that the RO is valid and extant. 

37.  The question which then falls for determination is whether the detention has become unreasonable in all the circumstances and hence unlawful.  That question requires an assessment in accordance with the Hardial Singh principles, namely that:

(1)  The Director must intend to deport the person and can only use the power to detain for that purpose (“HS1”);

(2)  The deportee may only be detained for a period that is reasonable in all the circumstances (“HS2”);

(3)  If, before the expiry of the reasonable period, it becomes apparent that the Director will not be able to effect deportation/removal within that reasonable period, he should not seek to exercise the power of detention (“HS3”); and

(4)  The Director should act with reasonable diligence and expedition to effect removal (“HS4”).

See Harjang Singh at §164(8).

38.  The starting point is that the period of detention to date is 178 days against which the other factors must be weighed and balanced.

39.  Contrary to the Applicant’s submissions I accept that the Applicant has been detained for the purpose of removal, and that the power of detention is being used only for that purpose.  I also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal.  This is evident from the steps taken to verify her identity and seeking a passport from CG, the regular interviews to ascertain Applicant’s willingness to return to Vietnam and DOJ writing to the High Court to seek priority be accorded to the JR Leave Application.   HS1 and HS4 are satisfied.

40.  Whilst currently there is a legal impediment to the Applicant’s removal, but if the JR Leave Application is dismissed, even if the Applicant appeals, this does not constitute a legal impediment to her removal.  I have no doubt given the judge’s indication that judgment will be handed down in early August 2026 that the JR Leave Application will be determined within a reasonable period of time, and if dismissed, with a valid passport, there is no reason to believe that the Applicant’s removal cannot be effected within a reasonable period if the Applicant cooperates. 

41.  The prolonged detention as a result the JR Leave Application not being filed promptly should be regarded as unreasonable conduct and the period of detention should not be regarded as unreasonable. 

42.  I also accept the Director’s assessment, given the Applicant’s history of absconding, stated unwillingness to return and coupled with the lack of local ties (her husband is also a non-refoulement claimant who is liable to be removed), there is a real risk of the Applicant absconding.  If she were to abscond, that would defeat the primary purpose for which the power to detain has been conferred and the intended effect of the RO.  The risk of absconding is of critical and paramount importance in the assessment of the lawfulness of the detention.  See Harjang Singh at §164(14).

43.  Although the Applicant says that she cannot go back to Vietnam because her life is in danger, as has been stated and repeated in many previous decisions, an application for habeas corpus is not an opportunity for the applicant to continue to assert the concerns underpinning the NRC and the court in her application for habeas corpus will not look at the merits of such claims.

44.  In relation to the Applicant’s claimed physical and mental conditions, in view of previous decided cases, there is no reason to believe that the Applicant would not receive proper medical treatment whilst in detention, if required.  There is no evidence to suggest that the Applicant is medically unfit for continued detention: see Mansuri, Intekhab Alam and Anor v Hong Kong SAR Government (Unrep)  HCAL 2428/2018, 6 November 2018, per Chow J (as he then was)  at §27 and Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 at §30 per Coleman J.

45.  I do not believe that the Applicant’s other submissions can have the effect of outweighing the matters identified in the preceding paragraphs to justify her release on recognizance.

46.  Overall, weighing the period of detention against all other factors, HS2 and HS3 are also satisfied.

F.   Conclusion

47.  Accordingly, I dismiss the Application with no order as to costs.