Nguyen Van Thanh v. Hong Kong Sar Government

HCAL 902/2023

[2023] HKCFI 1666

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 902 OF 2023

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BETWEEN

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D E C I S I O N

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A. Introduction

1.The Applicant is a subject of a Removal Order dated 21 January 2020 and a Deportation Order dated 22 February 2022, issued respectively under the provisions of section 19(1)(b)  and section 20(1)(b)  of the Immigration Ordinance Cap 115 (“Ordinance”).  He has been held in immigration detention pending his deportation from Hong Kong since 16 March 2023, pursuant to section 32(3)  of the Ordinance.  To the date of this hearing, the detention has lasted 93 days, or little over three months.

2.On 8 June 2023, the Applicant applied for a writ of habeas corpus by reference to the Hardial Singh principles.  On 12 June 2023, I gave leave for the Government to file and serve its response, and I gave the necessary directions to bring the matter to today’s hearing.

3.At the hearing, the Applicant appeared in person with the benefit of a Vietnamese/English interpreter.  The Government was represented by Mr Erick Ko, Senior Government Counsel, who also signed the written initial response.

4.This is my Decision.

B.  Background Leading to the Present Detention

5.The Applicant is a Vietnamese national born in 1971.

6.The Applicant says that he entered Hong Kong illegally on 2 August 2015, and he lodged a non-refoulement claim (“NRC”)  on 4 August 2015 when he surrendered himself to the Immigration Department (“ImmD”).  As already identified at the beginning of this Decision, a Removal Order and a Deportation Order were later issued against him in 2020 and 2022 respectively.

7.The Deportation Order was triggered by the commission of what are called “deportable offences”, in 2021.  The deportable offences of which he was convicted were ‘using a forged identity card’ and ‘taking employment while being a person in respect of whom a removal order is in force’. He was sentenced to a total of 15 months’ imprisonment for both offences on 27 May 2021, to run concurrently.

8.There is no need to delve into his NRC and subsequent legal proceedings at any great length.  Suffice to say that, by the time that the present detention commenced on 16 March 2023, his NCR and subsequent legal proceedings were no longer an impediment to his removal.

9.Since 7 December 2022, the Government has changed its removal policy to the effect that NRC related proceedings will no longer be seen as an impediment to removal once they have reached the stage of being rejected by the Court of First Instance (“CFI”).

10.The Applicant’s NCR had already reached the stage of his attempt to seek leave to appeal to the Court of Appeal (“CA”)  being dismissed in January 2023.  He has sought leave from the Court of Final Appeal (“CFA”), and that application is yet to be determined.  But because of the change of policy, from 7 December 2020 onwards, there has been no legal impediment to the Applicant’s removal.

11.On 16 March 2023, the Director revoked the release on recognizance previously granted to the Applicant, thus marking the beginning of the present detention.

12.It may also be noted that the Applicant is in possession of a valid Vietnamese passport, with validity expiring on 13 July 2025.

13.Thus, the Applicant was free of any of the usual removal obstacles that are commonly faced by immigration detainees even when the present detention commenced.

C.  Events subsequent to 16 March 2023

14.Various interviews were conducted by the Director with the Applicant after he was taken into custody.  The Applicant has consistently expressed his unwillingness to return to Vietnam.

15.On 12 April 2023, the Director received a letter dated 27 March 2023 issued by the Applicant requesting to make a “subsequent claim” and to have assistance from the Duty Lawyer Service (“DLS”).  If the Applicant was to be successful in filing a subsequent claim, this would have the effect of erecting a new impediment to removal.

16.A subsequent claim is a torture claim made by a person who has previously made a torture claim that has been finally determined or withdrawn, see section 37U.  A person can only be allowed to make a subsequent claim if he provides sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since the previous claim was finally determined or withdrawn, and the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success: see section 37ZO(2)  of the Ordinance.

17.Various email communication within the ImmD has been provided to me, showing that priority was accorded to handling the Applicant’s request, given that he was in detention.

18.By letter dated 26 April 2023, ImmD wrote to DLS to relate the Applicant’s request for assistance.  By letter dated 12 May 2023, DLS informed ImmD that it would not be representing the Applicant.  By letter of even date issued by ImmD to the Applicant, the Applicant was informed of the stance of DLS and was requested to submit all available evidence in support of his request to lodge a subsequent claim by 29 May 2023.

19.The Applicant eventually submitted a letter, written in Vietnamese, dated 29 May 2023.  The letter was later translated into Chinese.  The letter was apparently penned by the wife of the Applicant in Vietnam.  The wife told the Applicant that the family was still facing threat from the Applicant’s creditors or triad societies.  Those people came to their home every now and then to cause damage, to threaten, to beat up or to kill them.  Those people said that if the Applicant returns to Vietnam, they will wait for him at the airport and kill him when he lands.

20.By a Decision dated 15 June 2023, the Director rejected the Applicant’s request to lodge a subsequent claim.

21.On the same date, ImmD proceeded to secure a flight ticket for the Applicant’s deportation to Vietnam.  The repatriation flight is scheduled on 26 June 2023.

22.In the period of the present detention, the Applicant’s detention has been reviewed.  As shown in the latest review, it is considered by the Director that this is not a case warranting release of the Applicant on recognizance, having considered all relevant circumstances and balancing all factors including that: (1)  the Applicant’s removal is imminent, there being no legal impediment nor any practical problem relating to a travel document or authority for return; (2)  the Applicant poses, or is likely to pose, a threat or security risk to the community; (3)  the Applicant may abscond and/or re-offend; (4)  the Applicant does not have close connection or fixed abode in Hong Kong; and (5)  there are no other circumstances in favour of the Applicant’s release.

D.  Applicable Principles

23.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.

24.The essence is that an originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

E.  The Applicant’s Submissions

25.In the affirmation filed in support of this habeas corpus application, the Applicant submitted the following:

(1)  He has been detained for 3 months.  He had already been unreasonably detained for another period of 3 months back in 2022.

(2)  The judicial review application relating to his NRC is still in progress in the Court of Final Appeal.  He is not supposed to be subject to any mandatory deportation since his NRC has not been concluded.

(3)  The Director cannot deport him within a reasonable time.

(4)  Long-term detention has adversely impacted him both spiritually and psychologically.

(5)  Although he has committed one offence in the past, he has served his sentence and learned his lesson.  He does not present any threat to the community.

(6)  He has a friend, who is a Hong Kong permanent resident, who is willing to be his surety.  He also offers bail money up to HK$5,000 and promises to be bound by any bail conditions as the court sees fit to impose.

26.According to the Director, the previous period of immigration detention back in 2022, referred to in the affirmation, occurred after the Applicant was discharged from prison on 4 March 2022.  The period ran from 4 March 2022 until 28 May 2022.

27.At the hearing this morning, the Applicant essentially said only that he would urge the Court to allow him to be bailed out, and that his situation has been clearly stated in his wife’s letter, which is why he would like to be allowed to remain in Hong Kong for some more time.

28.In that regard, it may be necessary to note that the issue on this current application does not turn on whether the Applicant should be allowed to remain in Hong Kong for any period of time.  The Applicant is liable to be deported pursuant to the valid and extant Deportation Order issued against him.  The question to be answered on this current application is whether it remains lawful, and will remain lawful, for the Applicant to be detained until he is deported.

F.  Whether Detention has become unlawful

29.The Applicant has been detained under section 32(3)  of the Ordinance, which authorizes detention of a person against whom a deportation order is in force.  The Deportation Order remains extant. Therefore, could not be disputed that 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.

30.The starting point is that the Applicant has been detained up to today for a period of 93 days, or a little more than 3 months.  It is against that period that the other factors are to be weighed and balanced.

31.I can address and apply the Hardial Singh principles broadly in turn, as follows.

32.I accept that the Director has always been using the detention powers for the purpose of deportation.  The Applicant was taken into detention after any legal or practical impediment to his removal had been resolved, and following the making of the Deportation Order.  HS1 is satisfied.

33.I have no doubt that the Director has been acting with reasonable diligence and expedition in removing the Applicant.  This is evident by the promptitude demonstrated by the Director in handling the subsequent claim which, if accepted, would have inevitably halted the removal or deportation.  Once the request for subsequent claim was rejected, on the same day the Director moved to secure a flight ticket for the Applicant’s.  HS4 is accepted.

34.As said, there were no obstacles to removal when the present detention began.  At least, that was the case until he requested to lodge a subsequent claim.  Given the request was supported by a handwritten letter purportedly written by his wife stating that his creditors were still making trouble for his family in Vietnam and nothing else, and that internally within ImmD actions were taken to expedite the resolution of that request, it was not unreasonable for the Director to expect that that request could be resolved fairly soon.  As a matter of fact, it took only a little more than two weeks for the Director to resolve the matter after the Applicant had submitted all the supporting materials he had.

35.As it now stands, there is nothing to prevent the imminent departure scheduled in 3 days’ time, and at which time the Applicant will be released from detention (albeit in Vietnam).

36.I accept that the risk of re-offending and absconding on the part of the Applicant may not be said to be at the high end of the spectrum.  He worked whilst not permitted to do so and by using a forged identity card.  But, I am not made aware of any absconding record and Mr Ko could only point to the Applicant’s unwillingness to return in support of the risk of absconding, which must have some weight in the balancing exercise.

37.I take into account that the Applicant has identified a person who could stand as his surety or guarantor.  But I do not think that is of any great weight in the present circumstances of this case.

38.Looking at matters overall, and weighing all the other factors against the detention period of 93 days, including that departure is imminent and that he will be released from detention 3 days later, albeit in Vietnam, I am readily satisfied that the detention of the Applicant has remained and will remain or continue for a period which is reasonable and lawful.  HS2 and HS3 are satisfied.

G.  Result

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

40.I make no order as to costs.

The applicant, acting in person

Mr Eric Ko, Senior Government Counsel, of the Department of Justice, for the respondent