NGUYEN VAN NGUYEN v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1688/2024

[2024] HKCFI 3309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1688 OF 2024

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J U D G M E N T

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A.  Application

1.  By an ex parte application filed on 26 September 2024, 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.

B.  Background of Applicant

2.  The Applicant is a Vietnamese national who claimed to have entered Hong Kong illegally on 4 December 2013. The Applicant was removed to Vietnam on 6 January 2014.

3.  The Applicant then claimed to have entered Hong Kong again illegally in July 2014. He was sentenced to a total of 10 months’ imprisonment on 7 January 2015 for “Possession of forged identity card” and “Possession of false instruments”.

4.  A removal order was issued against the Applicant on 5 August 2015.

5.  On 25 October 2017, the Applicant was sentenced to 8 months and 1 week’s imprisonment for “Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong”. He was removed to Vietnam on 30 April 2018.

6.  Shortly after being removed from Hong Kong in April 2018, the Applicant, being undocumented, was arrested by the Police for illegal remaining on 28 October 2018. Upon enquiry, he claimed that he had entered Hong Kong from the Mainland illegally on 3 September 2018 (the “3^rd Entry”). On 26 July 2019, he was sentenced to 16 months’ imprisonment for “Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong”.

7.  Another removal order was issued against the Applicant in relation to the 3^rd Entry on 25 October 2019 (the “Removal Order”).

8.  He was released on recognizance on 15 November 2019.

9.  The Applicant failed to report recognizance since 11 April 2024. On 6 July 2024, the Applicant was arrested by the Police for being an absconder. He was then referred to the Immigration Department (the “Department”) and detained until present (the “Present Detention”). As at the date of hearing of the Application, the Applicant will have been detained for 131 days.

10.  From 8 July 2024 to 15 July 2024, the Applicant was detained at the Tseung Kwan O Immigration Detention Centre (“TKOIDC”). From 15 July 2024 to 28 August 2024, he was detained at the Castle Peak Bay Immigration Centre (“CIC”). From 28 August 2024 to present, he was detained at the Tai Tam Gap Correctional Institution (“TGCI”).

11.  A Deportation Order was issued against the Applicant on 5 November 2024 (the “Deportation Order”).

C.  NRC related proceedings

12.  The Applicant first lodged his non-refoulement claim on 5 November 2014, which was withdrawn on 10 March 2016. The Applicant raised another NRC in December 2018 (the “NRC”).

13.  The Director of Immigration (the “Director”) rejected the Applicant’s NRC on 8 March 2019 by a notice of decision (the “Director’s Decision”). The Applicant’s appeal to the Torture Claims Appeal Board against the Director’s Decision was dismissed on 14 October 2019 (the “TCAB Decision”).

14.  The Applicant’s application to the Court of First Instance for leave to apply for judicial review against the TCAB Decision (the “JR Application”) was dismissed by the Form CALL-1 in HCAL 3165/2019 dated 27 September 2024.

15.  According to the updated removal policy of the 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.

16.  There is thus no legal impediment to the Applicant’s removal due to any outstanding NRC related proceedings.

D.  Criminal Record & Sentencing Record & Record of Abscondence

17.  Whilst the Applicant was released on recognizance, the Applicant had repeatedly been arrested and subsequently been convicted of the following criminal offences:

Date of Sentence	Offence	Sentence/Period of Imprisonment
7 January 2015	Possession of forged identity card and Possession of false instruments	10 months
25 October 2017	Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong	8 months
26 July 2019	Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong	16 months

18.  The Applicant had absconded between 11 April 2024 and 6 July 2024.

E.  Steps towards Removal

19.  On 25 July 2024, shortly after the commencement of his detention, the Applicant had indicated his refusal to return to Vietnam. The Applicant was further interviewed on 13 August 2024, 5 September 2024, 17 September 2024, 18 October 2024 and 22 October 2024, during which he expressed repeatedly his unwillingness to return to Vietnam

20.  On 13 September 2024, the Applicant was informed of the re-entry seeking arrangement and attended an interview with the Vietnamese Interview Team (a team of officials from the Vietnamese Government responsible for the verification of an applicant’s identity and the approval of his return to Vietnam) (the “VIT”) on 24 September 2024. Approval for his return to Vietnam was granted by the VIT on 27 September 2024.

21.  A replacement travel document was issued on 1 November 2024. A flight returning the Applicant has been arranged for 18 November 2024, 3 days after the hearing.

22.  It can thus be seen that the Department has all along taken a proactive stance in effecting the Applicant’s removal, and the major reason why the Applicant cannot be deported is his refusal to co-operate.

F.  Applicable Principles

23.  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.

24.  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

25.  The Applicant has set out his grounds for application in his affirmation filed on 26 September 2024. In summary, they are as follows:

(1)  The initially lawful detention has become unlawful.

(2)  The detention can only be used for the purpose of removal and not for protection of the public.

(3)  The detention cannot be effected within a reasonable time.

(4)  His NRC is still under process.

(5)  He poses no threat to the community.

(6)  He has a fixed abode in Hong Kong and has a friend who would support him.

26.  The Applicant has in addition submitted further written submissions at the hearing, with the following additional grounds:

(1)  His abscondence was due to illness.

(2)  He is in poor health and the condition in the detention centre is not good.

27.  I have borne these points in mind as appropriate in my analysis below.

H.  Lawful Authority for Detention?

28.  The Removal Order and the Deportation Order remain valid.

29.  From 8 July 2024 to 16 October 2024, the Applicant was detained under section 32(3A) of the Ordinance pending removal pursuant to the Removal Order.

30.  From 17 October 2024 to 30 October 2024, the Applicant was detained under section 29(1) of the Ordinance pending consideration of whether a deportation order should be made against him.

31.  From 31 October 2024 to 4 November 2024, the Applicant was detained under section 29(2) of the Ordinance pending consideration of whether a deportation order should be made against him.

32.  From 5 November 2024 to date, the Application was detained under section 32(3) of the Ordinance pending removal under the Deportation Order.

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

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

I.  Whether Detention has become unlawful

35.  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 for Security (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”);

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

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

HS1

37.  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

38.  The starting point is the length of the detention – about 131 days – against which all the other factors must be weighed and balanced.

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

(1)  Pursuant to the updated removal policy, after the Applicant’s JR Application was dismissed on 27 September 2024, there is no longer any legal impediment to the Applicant’s removal due to his NRC. It is irrelevant for the purposes of removal that there is any outstanding appeal.

(2)  This court has no jurisdiction to revisit the result of the JR Application, or otherwise grant the Applicant a right to remain in Hong Kong.

(3)  The Applicant had been un-cooperative with removal formalities since the commencement of his detention to the date of the hearing.

(4)  In Johnson Benjamin v Director of Immigration & Secretary for Security[1], the Court of Appeal held that:

“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.”

(5)  The period of detention that the Applicant has prolonged by his refusal to co-operate (the commencement of detention to 15 November 2024) will thus not be counted as unreasonable when determining whether an originally lawful detention has become unlawful.

(6)  The risk of re-offending is present in view of the Applicant’s conviction record. Although the past offences only concerned his illegal remaining in Hong Kong, there is a risk of the commission of other offences such as working as an illegal immigrant, as he would need to support himself. The repeated illegal entry into Hong Kong shows that the Applicant has little regard to the law in Hong Kong.

(7)  The risk of abscondence is high, given his strong unwillingness to return and that his last abscondence lasted for about 3 months. In light of the long period of abscondence, illness is not an excuse for failing to report to the Department. The risks of abscondence is of critical and paramount importance in the assessment of the lawfulness of detention. As recognised by the Court of Appeal, if a person absconds, it will defeat the primary purpose for which the power to detain has been conferred[2].

(8)  The Applicant had since the commencement of his detention indicated that he was unwilling to return to Vietnam. Given the Applicant’s clear attitude that he is unwilling to be repatriated and there is no further legal impediment to his removal, the risk of absconding is high.

(9)  On 27 September 2024, approval for return to Vietnam was granted by the VIT and a travel document had been issued. The Applicant will be removed imminently as a flight has already been secured for 18 November 2024.

(10)  Despite an assertion that he has a younger cousin who would support him in Hong Kong, it is a weak connection which would be outweighed by his strong unwillingness to return to Vietnam and his repeated illegal entry into Hong Kong.

(11)  Overall, taking into account all the relevant factors, I am satisfied that HS2 and HS3 are met.

HS4

40.  In view of the steps that had been taken by the Director as set out in paragraphs 19 – 21 above, I am of the view that the Director had diligently pursued the Applicant’s removal and I am satisfied that HS4 is satisfied.

41.  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

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