TRAN THI LUYEN v. THE SECRETARY FOR SECURITY AND ANOTHER

HCAL 1649/2023

[2023] HKCFI 2977

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1649 OF 2023

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JUDGMENT

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A.  Application

1.  By an ex parte application filed on 15 September 2023, the Applicant applies for a writ of habeas corpus, pursuant to Order 54 Rule 1 of the Rules of the High Court (Cap 4A). The Applicant thereby seeks release from the custody of the Correctional Services Department.

2.  Although the Government of the Hong Kong Special Administrative Region was originally named as a respondent, the power to authorize the Applicant’s detention is conferred on the Secretary for Security (the “Secretary”) whilst the Director of Immigration (the “Director”) decides whether the Applicant should be released on recognizance. Therefore, the proper respondents to the application should be the Secretary and the Director.

B.  Background of Applicant

3.  The Applicant is a Vietnamese national born in 1976 who entered Hong Kong illegally on 15 March 2019 and was arrested by the police on 26 April 2019. The Applicant holds a valid Vietnamese passport which expires on 6 August 2028.

4.  On 4 July 2019 the Applicant was convicted of various offences and was sentenced to 15 months’ imprisonment as set out in paragraph 13 hereunder.

5.  A removal order was issued against the Applicant on 18 March 2020 (the “Removal Order”).

6.  The Applicant’s recognizance was ceased on 31 August 2023 and was detained in Castle Peak Bay Immigration Centre pursuant to section 32 (3A) of the Immigration Ordinance (Cap 115) (the “Ordinance”). She was transferred to Nei Kwu Correctional Institution for detention on 26 September 2023.

7.  An application for a deportation order was made on 17 October 2023. The Applicant objected to a deportation order. A deportation order was issued against the Applicant on 26 October 2023 (the “Deportation Order”)

8.  At the time of the hearing, the Applicant has been detained for 75 days.

C.  NRC related proceedings

9.  The Applicant indicated her intention to make a non-refoulement claim on 1 June 2019 (the “NRC”) based on her alleged fear of being harmed or killed by her creditors in Vietnam. The NRC was rejected by the Director of Immigration on 11 October 2019 (the “Decision”). The Torture Claims Appeal Board dismissed the Applicant’s Appeal against the Decision on 23 December 2020 (the “TCAB Decision”).

10.  The Applicant applied to the Court of First Instance for leave to commence judicial review against the TCAB Decision in HCAL 126/2021 on 4 February 2021. The hearing for the Applicant’s application for leave to commence judicial review took place on 25 October 2023. The decision for this application is pending.

11.  According to the updated removal policy of the Immigration Department since 7 December 2022, once a NRC claimant's subsequent legal proceedings have reached the stage of having been rejected by the Court of First Instance, the existence of further proceedings will not normally be considered by the authority as an impediment to removal.

12.  At the moment, the only legal impediment to the Applicant’s removal is thus the pending result in HCAL 126/2021.

D.  Criminal Record & Sentencing Record

13.  The Applicant’s criminal and sentencing records are as follows:

Date of Conviction	Offence	Period of Sentence
4 July 2019	Remaining in Hong Kong without the authority of the Director after having landed unlawfully in Hong Kong	15 months (concurrent)
	Using a forged identity card	15 months (concurrent)
	Taking employment while being a person who remains in Hong Kong without the authority of the Director after having landed in Hong Kong unlawfully	15 months (concurrent)

E.  Steps towards Removal

14.  The Immigration Department informed the court on 20 September 2023 that the Applicant had filed an application for habeas corpus and enquired about the progress of the Applicant’s application for leave to commence judicial review against the TCAB Decision in HCAL 126/2021.

15.  The hearing for the Applicant’s application for leave to commence judicial review against the TCAB Decision took place on 25 October 2023 and the result is pending.

16.  The Immigration Department applied for a deportation order against the Applicant on 17 October 2023, which was issued on 26 October 2023.

F.  Applicable Principles

17.  In the Court of Appeal’s Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security and Another [2022] HKCA 781, the principles to be applied in an application for habeas corpus were set out in summary in §164.

18.  In considering the present application, I have adopted the said principles and have borne in mind that (1) the burden is on the Director to justify the continued lawfulness of the detention, and (2) the weight to be given to individual factors in the balancing exercise may, depending on the circumstances of the particular case, vary considerably as the period of detention lengthens.

G.  The Applicant’s Submissions

19.  The Applicant has set out her grounds for application in her affirmation dated 7 September 2023. In summary, they are as follows:

(1)  The outcome of her NRC is pending.

(2)  The deportation cannot be effected within a reasonable time. The Director has not taken active steps to effect her removal.

(3)  A friend of the Applicant’s (a Hong Kong permanent resident) is willing to act as surety for the Applicant.

20.  At the oral hearing, the Applicant repeated the above points in her oral submissions.

21.  I shall bear these points in mind as appropriate in my analysis below.

H.  Lawful Authority for Detention?

22.  The Removal Order was issued on 18 March 2020 and remains extant. The Applicant has been detained:

i)  from 31 August 2023 to 12 October 2023 (43 days) under Section 32(3A) of the Ordinance which permits the detention of a person against whom a removal order is in force pending his deportation from Hong Kong;

ii)  from 13 October 2023 to 26 October 2023 under Section 29(1) of the Ordinance which provides the power to detain for inquiry as to deportation; and

iii)  after the issue of the Deportation order on 26 October 2023, from 27 October 2023 to the date of the hearing, the Applicant was detained pursuant to Section 32(3) of the Ordinance which permits the detention of a person against whom a deportation order is in force pending his deportation from Hong Kong.

23.  Thus, there was and remains clear prima facie lawful authority for the detention throughout.

24.  Therefore, the question arises as to whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

I.  Whether Detention has become unlawful

25.  The assessment of whether an originally lawful detention has ceased to be lawful due to its continuation for an unreasonable period will be made in line with the “Hardial Singh principles”:

(1)  The Secretary/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 Secretary/Director will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention (“HS3”); and

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

26.  The burden of demonstrating the detention (and the continuation of it) is lawful rests on the respondent to the application for habeas corpus.

HS1

27.  I am satisfied that the Director has detained the Applicant for the sole purpose of removal or deportation throughout the detention period. HS1 is satisfied.

HS2 & HS3

28.  The starting point is the length of the detention – about 75 days – against which all the other factors must be weighed and balanced.

29.  For the following reasons, I am satisfied that HS2 and HS3 are satisfied:

(1)   Although the Court of First Instance has yet to hand down its decision for the Applicant’s application for leave to commence judicial review, the hearing for such application already took place on 25 October 2023 and it is anticipated that a result would be available within a reasonable time.

(2)  A preliminary review of the TCAB Decision does not reveal strong merits on the Applicant’s application for leave to commence judicial review against such decision.

(3)  The Removal Order remains valid and the Deportation Order is in place. As the Applicant has a valid passport, if the Court of First Instance dismisses the Applicant’s application for leave to commence judicial review, it is foreseeable that she can be deported within a short time thereafter.

(4)  With the only impediment being the handing down of the Form CALL-1, and my preliminary assessment of the merits of the Applicant’s application for leave to commence judicial review, I am satisfied that there is sufficient prospect of removal within a reasonable timescale.

(5)  On the other hand, if the Court of First Instance grants leave to the Applicant to commence judicial review, it is anticipated that the Director is likely to release the Applicant if upon review, it is decided that she cannot be deported in a reasonable period.

(6)  The Applicant has been convicted of various offences whilst on recognizance. I am of the view that there is a risk of re-offending, as the Applicant would need to work (illegally) to support herself.

(7)  Although the Applicant has identified her cousin who is willing to act as her surety, the amount of such surety is likely only of a limited monetary amount. Given the Applicant’s strong unwillingness to be repatriated, the risk of absconding is real.

(8)  Overall, weighing the period of detention – around 75 days – against all the other factors, I am satisfied that HS2 and HS3 are met.

HS4

30.  I am satisfied that HS4 is satisfied as the Director had pursued the Applicant’s deportation diligently, as shown in paragraphs 14 – 16 above.

31.  Based on the above, I am of the view that the period of detention to date has remained lawful at all times and will remain lawful for the foreseeable future.

J.  Result

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