PHAM THI THOM v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1385/2025

[2025] HKCFI 3669

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1385 OF 2025

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BETWEEN

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DECISION

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1.   Introduction

1.1  The Applicant is subject to a Removal Order and a Deportation Order respectively dated 6 May and 6 August 2025. She has been held in immigration detention since 7 April 2025 pursuant to various sections of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the hearing before me, she has been detained for 134 days.

1.2  This is my decision on the Applicant’s application for a writ of habeas corpus filed on 17 June 2025. At the hearing, the Applicant appeared in person with the benefit of an interpreter. Ms Lynn Hui, Acting Senior Government Counsel, appeared for the Director of Immigration (“Director”) and the Secretary for Security (“Secretary”).

2.   Background

2.1  The Applicant is a Vietnamese national who claimed to have sneaked into Hong Kong on 7 October 2016. She was arrested by the police on 10 October 2016 for remaining in Hong Kong without the authority of the Director after having landed unlawfully in Hong Kong and theft. On 12 October 2016, she was sentenced to 6 weeks’ imprisonment for theft (shoplifting). She was subsequently remanded for the illegal remaining charge and granted court bail on 20 December 2016.

2.2  On 4 February 2019, the Applicant submitted to the Immigration Department her Vietnamese passport which was valid until 16 May 2026.

2.3  On 1 March 2019, the Applicant jumped court bail. She was arrested by the police 5 years later on 16 July 2024. On 14 August 2024, she was convicted of the illegal remaining charge and sentenced to 15 months’ imprisonment.

2.4  The present detention commenced upon her discharge from prison on 7 April 2025.

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

3.1  The Applicant’s NRC was refused by the Director on 10 July 2017. Her subsequent/appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”) was dismissed on 20 March 2019 (“TCAB Decision”).

3.2  Although the TCAB Decision was made on 20 March 2019, after a substantial lapse of time and only after the commencement of the present detention, the Applicant on 23 April 2025 applied to leave to apply for judicial review against the TCAB Decision (HCAL 981/2025).

3.3  Requests have since been made to the Court of First Instance to accord priority to HCAL 981/2025. As things presently stand, on 10 July 2025, the court indicated that a decision will be handed down as soon as possible or in September 2025.

4.   The present detention and its reviews

4.1  The present detention is or has been pursuant to the following sections of the Ordinance:

(1) From 7 April to 6 May 2025, pursuant to various subsection 32(2A) pending inquiry as to whether a removal order should be made;

(2) From 6 May 2025, pursuant to section 32(3A) ;

(3) From 14 April to 4 May 2025, pursuant to section 32(2A)(b);

(4) From 5 to 6 May 2025, pursuant to section 32(2A)(c);

(5) From 6 to 21 July 2025, pursuant to section 32(3A) pending removal under the Removal Order;

(6) From 22 July to 4 August 2025, pursuant to section 29(1);

(7) On 5 August 2025 pursuant to section 29(2);

(8) From 6 August 2025, pursuant to section 32(3) pending removal under the Deportation Order.

4.2  Throughout the present detention, the Applicant has persistently indicated her unwillingness to return to her home country.

4.3  The Applicant’s detention was last reviewed on 7 July 2025. Her release from detention was considered to be unwarranted by reason of the following broad grounds:

(1) There was no sufficient reason to believe that HCAL 981/2025 could not be finalized within a reasonable period of time;

(2) The Applicant had a history of jumping court bail for an expended period, which fact, coupled with her strong reluctance to return to her home country and lack of local ties, indicates a substantial risk of absconding;

(3) There was a risk of the Applicant (re)offending given her criminal records.

5.   The Applicant’s submissions

5.1  In her written materials, she puts forward the following grounds:

(1) The period of detention has become unreasonable;

(2) Her NRC is still outstanding, and even were HCAL 981/2025 determined against her, she has further avenues to challenge that decision to the higher courts and a right to apply to make a subsequent claim;

(3) She has no previous offence connected to violence and promises not to reoffend;

(4) She promises not to abscond and has a friend who is a permanent resident in Hong Kong willing to act as her guarantor;

(5) She is suffering from physical and mental stress as a result of her detention.

5.2  At the hearing, the Applicant confirmed that the above was an accurate summary of the grounds of her application. She supplemented as follows that she feared for own safety if returned to her home country and produced a photograph allegedly showing triad members threatening her father at her home regarding a debt owed by her which remained outstanding. She asked that she be permitted to remain in Hong Kong for her father to resolve the issue.

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 identified sections 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 134 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/Secretary 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/Secretary have acted with diligence and expedition to effect the Applicant's removal. HS4 is satisfied. The foregoing is amply demonstrated by the matters adumbrated above, including the efforts made expedite the resolution of HCAL 981/2025 and the speedy issuance of the Removal Order.

7.4  As at the commencement of the present detention, there was neither legal nor practical impediment to the Applicant’s removal. A legal impediment was created by the commencement of HCAL 981/2025. As noted above, those proceedings were only commenced after a substantial lapse of time. In my view, the following observations made in Johnson Benjamin are apposite:

“[25] On the other hand, as mentioned above, the Judge rightly found that the applicant by his own conducts had not pursued with any reasonable diligence his NRC for a long period of time. By the time when he eventually seriously pursued it in December 2021 (just before he was to be released from prison), it was already 10 years since the applicant first lodged the NRC. See: [15] - [21] and [62] - [74] of the Written Judgment.

[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.”

7.5  The Applicant plainly did not observe the time limit within which she ought to have pursued her application for leave to apply for judicial review. As such, I agree with Ms Hui’s submission that the Applicant’s unjustified and excessive delay in bringing HCAL 981/2025 indicates a deliberate attempt to frustrate her removal from Hong Kong. In any event, there is now a definite timeline for the resolution of HCAL 981/2025. I further add that the Applicant’s understanding that potential challenges against an unfavourable decision would amount to a legal impediment is erroneous by reason of the Updated Removal Policy. I should emphasize that I am not here to speculate the outcome of HCA 981/2025. No doubt, the Applicant’s detention will be reviewed appropriately depending on the outcome.

7.6  Relatedly, as regards the Applicant's fear for her 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 assert the concerns underpinning her NRC and the court in her habeas corpus application will not look at the merits of any such claim. Such matters are properly the subject matter of HCAL 981/2025.

7.7  I am prepared to proceed on the basis that the nature of the Applicant’s previous convictions does not give rise to a serious concern that she poses a threat or security risk to the community. However, there remains a risk of (re)offending, which risk, if materializes, may delay her removal by reason of consequential investigations and potential court proceedings.

7.8  Perhaps more significantly, I accept Ms Hui’s submission that, given the Applicant’s previous history of jumping court bail and remaining incognito for a lengthy period until arrested, there is plainly a real risk of the Applicant absconding, which risk, if materializes, will defeat the purpose for which the power for detention is conferred. I do not regard the offer of a guarantor and the Applicant’s own promise not to abscond have the effect of outweighing the risk of absconding.

7.9  In relation to the Applicant's claimed physical and mental stress, 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 her 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 resolution of HCAL 981/2025), has been and will remain lawful.

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