BUI VAN TUYEN v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 180/2023

[2023] HKCFI 665

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 180 OF 2023

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DECISION

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A.  Introduction

1.  The Applicant is a subject of a Removal Order and a Deportation Order issued under the Immigration Ordinance Cap 115 (“Ordinance”). He has been held in immigration detention since 20 November 2021 pending his removal from Hong Kong. To the date of this hearing, the period of detention has lasted 469 days, or around 15½ months.

2.  On 8 February 2023, the Applicant applied for writ of habeas corpus on the basis that his detention has continued for a period which has become unreasonable and thus unlawful.

3.  I gave directions for the Respondents to file an Initial Response, and so as to bring the matter to today’s hearing. At the hearing, the Applicant appeared in person with the benefit of a Vietnamese/English interpreter. The Respondents were represented by Ms Kristy Tse, Government Counsel, who undersigned the Initial Response together with Ms Crystal Wong, Government Counsel.

B.  Factual Background

B.1  Circumstances leading to the present detention

4.  The Applicant is a Vietnamese national. In November 2014, he was sighted in Hong Kong and arrested by the Police for being a suspected illegal immigrant. Upon arrest, he said that he entered Hong Kong illegally a few days before. Soon after his arrest, he lodged a non-refoulement claim (“NRC”), and has since then been unlawfully remaining in Hong Kong as a non-refoulement claimant.

5.  In the 7 years running from November 2014 to November 2021 when the present detention began, he was frequently in and out of prison for committing theft (shoplifting). In total, he was convicted of theft (i.e. shoplifting) on 11 occasions. As his previous conviction record lengthened, the sentences he received became stiffer. The length of imprisonment imposed moved from days to weeks and then to months. The last sentence for shoplifting was imposed in September 2021, when he was sentenced to 6 months.

6.  He was also once convicted of possession of dangerous drugs, and was sentenced to 16 months in total (together with 5 counts of shoplifting) in October 2018.

7.  During the currency of the present detention, he was also convicted of and then sentenced for illegally remaining in Hong Kong, which brought him 15 months’ imprisonment. But, as I understand from the written submissions, by the date of sentence on 19 August 2022, the Applicant had already been in immigration detention for 553 days the period of which could be and was used to reduce his prison term to nil. His immigration detention continued after he had been sentenced.

8.  Almost every time after the Applicant was discharged from prison, he would be handed over to the Immigration Department (“ImmD”) which would then subject him to a period of immigration detention. These prior periods of immigration detention were mostly about 20-odd days, but 2 of them ran up to 60 to 70 days. In a repetitive cycle, releases on recognizance were followed by offences and convictions and imprisonment,

9.  The present immigration detention began after the Applicant was discharged from prison for his last shoplifting conviction. Initially, he was detained under section 32(3A) of the Ordinance, on the strength of a Removal Order issued on 4 December 2014. Whilst he was detained, a Detention Order was also issued on 17 February 2023. Since then, he had been detained under section 32(3) which authorizes detention pursuant to a Deportation Order.

10.  Both the Removal Order and the Deportation Order remain extant.

B.2  The Applicant’s Non-refoulement claim

11.  The Applicant raised a NRC in November 2014. His NRC was rejected by the Director in 2016. Apparently there was an attempt to submit additional information on the part of the Applicant, but in any event such an attempt resulted in a further rejection by the Director, also in 2016. Both decisions of the Director were subject to appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”), which dismissed the appeal in 2018.

12.  In April 2019, the Applicant applied for leave to judicially review the Board’s decision, in HCAL 953/2019. In July 2022, after the present detention had already begun, the Applicant wrote to the Court requesting to withdraw his leave application. He said his problems in Vietnam had been solved and he wanted to return.

13.  In August 2022, DHCJ Lung noted the withdrawal request and, on the strength of Re Manik Md Mahamudun Nabi [2022] HKCA 471, concluded HCAL 953/2019 by a dismissal.

14.  In November 2022, the Applicant applied to the Court of First Instance (“CFI”) for leave to appeal against the CFI’s decision out of time. In December 2022, the CFI dismissed the application.

15.  On 17 January 2023, the Applicant renewed his application to appeal out of time before the Court of Appeal (“CA”) in CAMP 23/2023, the decision in which is pending.

16.  At this juncture, it may be noted that the Government has updated its removal policy on 7 December 2022, such that once a NRC has proceeded to the stage of being substantively dismissed by the CFI, further appeal will no longer be considered as a legal impediment to removal.

17.  Thus, insofar as the Secretary or Director is concerned, as it now stands the only set of legal proceedings impeding the Applicant’s removal is this habeas corpus application.

B.3  Steps taken by the Director to effect removal

18.  When the present detention commenced, the major obstacles towards removal were the Applicant’s on-going judicial review in HCAL 953/2019 and the Applicant’s expired passport (expired in 2011) which needed replacement.

19.  As set out above, from 7 December 2022 onwards, the Director/Secretary no longer considers that there are NRC or related legal proceedings impeding the Applicant’s removal.

20.  As to the travel document, from December 2021 to November 2022 the Director had sent 20 emails, diplomatic notes or letters to the Consul of Socialist Republic of Vietnam seeking approval for the Applicant’s return or requesting the expedition of Applicant’s travel document replacement.

21.  On 1 December 2022, a positive reply was eventually obtained from the Vietnamese authorities approving the Applicant’s return.

22.  On 7 December 2022, a Vietnamese passport was issued to the Applicant with validity expiring on 7 December 2023.

23.  On 21 February 2023, the Director has purchased a flight ticket scheduled for 7 March 2023 for the Applicant’s repatriation to Vietnam.

B.4  Review of Detention

24.  Throughout the period of the current detention, the Applicant’s detention was reviewed on numerous occasions and release on recognizance was never granted. In general, the grounds or reasons relied upon for continued detention were as follows:

(1)  The Applicant’s removal is going to be possible within a reasonable time. Before 7 December 2022, it was either noted that there was no outstanding NRC related proceedings or that such proceedings were expected to be dealt with shortly. It was also said that the Director had been chasing the Vietnamese authorities for the replacement of the Applicant’s travel document and removal could be effected as soon as the necessary document was issued.

(2)  The Applicant poses or is likely to poses a threat to the community. If released on recognizance, he may re-offend. It was noted that he was convicted of 15 counts of theft, 1 count of possessing dangerous drugs and 1 count of illegally remaining in Hong Kong. The offences are considered to be of serious nature.

(3)  In connection with the previous point, he had records of being re-arrested during recognizance.

(4)  He may abscond if released on recognizance. He had once jumped court bail, in 2020, and once breached court bail conditions by attempting to leave Hong Kong in 2019.

(5)  His submissions that a Hong Kong permanent resident was willing to be his guarantor were taken into account but could not outweigh factors favouring continued detention.

(6)  There are no other factors favouring his release on recognizance.

25.  It may also be noted that the Applicant was equivocal in his willingness to return to Vietnam throughout the period of the present detention. But the latest status seems to be one of unwillingness to return.

C.  Applicable Principles

26.  In its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781, the Court of Appeal addressed the principles to be applied in a case such as the present. 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 this case.

27.  I will apply those principles as applicable to the particular circumstances of this case.

D.  Applicant’s Submissions

28.  Attached to the Applicant’s supporting affirmation numerous are “exhibits” numbered up to 14 which appear to be intended to serve as the Applicant’s hearing bundle. These exhibits include a letter requesting for an oral hearing, his habeas corpus application form, his “Form 8”, 2 sets of Notice of Review of Detention issued by the Director, etc.

29.  Amongst the “exhibits” were also 4 sets of handwritten notes, which appear to have come from different hands, and 3 of which are photocopies of the original versions of those notes.

30.  In the first set (“Exhibit 10”), in original handwriting, he says (as I understand it):

(1)  He has been detained for a very long time.

(2)  The Director could not remove him within a reasonable time. His NRC and judicial review proceedings are still on-going. It is wrong for the Director to say that they could be finalized within a reasonable time because he has the right to further appeal and the right to raise a subsequent claim.

(3)  The Director cannot say that he could be removed within a reasonable time because the Director cannot say when. If the Director says that a certain period is reasonable, there must be some indication how long that period is.

(4)  The Director has failed to act with expedition and diligence. They have not even taken him to the Vietnamese Consulate to confirm his identity.

(5)  He does not agree that he poses or is likely to pose risk or threat to the community. The offences he committed are not of a violent nature and not as serious compared to other cases. The risk, in any event, is a relatively low one.

(6)  With regard to the risk of absconding, he was sorry for what he did in the past. He would try his best not to miss any recognizance appointments in the future.

(7)  Since the Director could not remove him, then what purpose could there be to continue to detain him?

31.  In the second set of handwritten notes (‘Exhibit 12”), the cover suggests that it is a response to the assessment that the Applicant’s removal would be possible within a reasonable time. It heavily cites the case of Romeo Santiago (HCMP 2592/1988) which was a habeas corpus application where an immigration detainee was detained for 4 months pending his removal from Hong Kong. There, the learned Judge said that 4 months was a very long period for a person to be kept in detention pending his removal. The Applicant says he was detained for a much longer time, i.e. 14 months. There are also what appears to be citations and quotes from judgments and textbooks touching on habeas corpus applications. He also refers to his disability, but it is not apparent what sort of disability that is.

32.  The cover of the third set (“Exhibit 13”) suggests that it is intended as a reply to the assessment the Applicant poses is or likely to pose a threat or risk to the community. Paragraphs from the CA’s judgment in Harjang Singh are cited without explaining how they could apply to his case. There are also statistics which are said to show that crimes committed by foreign nationals or Form 8 holders are low in number.

33.  The cover of the fourth set (“Exhibit 14”) suggests that it is intended as a reply to the assessment that he might abscond or re-offend. He heavily quotes the paragraphs from various judgments he might consider as helpful to his case, but it is not apparent to me how he would apply the cited judgments to his benefit.

34.  At the hearing, he further has submitted (in my summary of what he said) that:

(1)  He does not understand why he has been held in custody for so long.

(2)  He has made the application in CAMP 23/2023, and he does not know when he would have the result of that application.

(3)  He made that application after he learned from his father that the persons from whom he had borrowed money in Vietnam were still threatening his life if he were to return to Vietnam.

(4)  If he loses that application, he wishes to continue to appeal.

(5)  If he is released, he can try to engage in a process so that he can return to Vietnam.

(6)  He wishes to be given a final chance to stay in Hong Kong.

(7)  He has his wife and friends in Hong Kong, and can receive ISS allowance.

(8)  Also, if released, he can have medical treatment at an outside hospital or clinic.

35.  The Applicant also handed up some further documents relating to: (1) a medical appointment that he attended at the Queen Mary Hospital in September 2022; (2) an application for Legal Aid which he has apparently made in the context of his application to the Court of Appeal; (3) the procedural directions given by the Court for that application; (4) a letter about a data access request made by him; and (5) the contact details of a proposed guarantor, were he to be released on recognizance.

36.  I will bear all these points in mind in my overall assessment below, and make references to them as appropriate.

E.  Whether Detention has become unlawful

37.  There was and remains clear prima facie lawful authority for the detention of the Applicant. The question then arises whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

38.  The starting point is that the Applicant has been detained for the period of 469 days, or about 15½ months. This is undoubtedly a very lengthy period, and it is against this period that the other factors are to be weighed and balanced.

39.  I can address the Hardial Singh principles broadly in turn, as follows.

40.  I accept that the Secretary/Director intend to remove or deport the Applicant and have been only using the power to detain for that purpose. The fact that Secretary/Director have been unable to put such intention into effect in more than 15 months is clearly unfortunate, but it does not mean that such intention was untrue. For example, the Director’s active liaison with the Vietnamese authorities to facilitate the Applicant’s re-entry into Vietnam evidences such an intention. HS1 is satisfied.

41.  I am also satisfied that the Director has acted with reasonable diligence in effecting removal. The Director has actively pursued the Applicant’s re-entry, which has eventually resulted in the issuance of a replacement passport on 7 December 2022. As at this point, the preparation for the Applicant’s removal is approaching the final stage, with a repatriation flight already scheduled for 7 March 2023. The Applicant says the Director did not even bring him to the Vietnamese Consulate for verification of his identity, but (as evidenced in the chronology) it seems that this step was not necessary for the issuance of a replacement passport to the Applicant. HS4 is satisfied.

42.  The Applicant’s NRC related proceedings remained an impediment to removal throughout the first 11 months of detention – from 20 November 2021 to 10 October 2022, when the CFI dismissed the Applicant’s leave application. The leave application might have taken longer than the Director had expected for it to be disposed of. That was also unfortunate, but happened through no one’s fault. It does not mean that the Director’s expectation that the application could be dealt with relatively shortly was unreasonable at the time.

43.  The existence of the application in CAMP 23/2023 is no longer an impediment to removal of the Applicant from Hong Kong. The Applicant’s stated desire to exhaust any further avenues of potential appeal does not change that position.

44.  Further, in so far as the Applicant might think that these proceedings are an opportunity for him to persuade the Court that he should be permitted to remain in Hong Kong, that is mistaken. The question as to whether there should be refoulement falls to be (or, to have been) decided under his NRC and related legal proceedings. The NRC having failed, and there being extant Removal and Deportation Orders, the Applicant is liable to be removed/deported. The only question on this application for habeas corpus is whether it has become unlawful to continue to detain the Applicant pending that removal/deportation.

45.  With regard to the Applicant’s point that the Director could not say when removal would be effected, this argument has now been overtaken by events since the repatriation flight has already been scheduled for 7 March 2022. In any event, around early December 2022 when the removal policy was updated and a positive reply was finally received from the Vietnamese Consulate, removal had become imminent.

46.  I also agree with the Secretary/Director’s assessment that the Applicant may re-offend or abscond if released on recognizance, given his past criminal and absconding records. The risk cannot be said to be a low one, where the Applicant is a recidivist. I also agree that the imminence of the removal and the Applicant’s expressed unwillingness to return – which he sought to emphasize this morning – may further add to the risk of absconding. Absconding would frustrate the very purpose for which the detention power was granted in the first place.

47.  I do not think the family connections and the possibility of a guarantor are particularly weighty matters in the balancing exercise in this case. Similarly, should the Applicant require any medical treatment in the short period before his imminent removal, there is no reason to think that such treatment would not be available at or with the assistance of the place where he is currently detained.

48.  I accept that 15½ months is a very substantial period. But weighing that period against all the factors including the fact that the Applicant will soon be released from detention on 7 March 2023, albeit in Vietnam, I am satisfied that the detention has remained and will remain or continue for a period which is lawful. HS2 and HS3 are satisfied.

F.  Result

49.  For these reasons, I dismiss the Applicant’s application for a writ of habeas corpus.

50.  I make no order as to costs.