Hoang Cong Thuan v. Director of Immigration

HCAL 1105/2023

[2023] HKCFI 1925

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1105 OF 2023

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D E C I S I O N

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A.  Introduction

1.The Applicant is the subject of a Removal Order and a Deportation Order made on 15 April 2015 and 30 March 2023 respectively.  Since 4 January 2023, he has been held in immigration detention authorized by various sections of the Immigration Ordinance Cap 115 (“Ordinance”).  To the date of this hearing, the detention has lasted 203 days, or about 6½ months.

2.On 6 July 2023, he applied for a writ of habeas corpus on the basis that he would be in danger if he returns to Vietnam.  On 10 July 2023, I gave leave for the respondent Director of Immigration to file and serve a written response and 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 Director, together with the Secretary for Security (who has the power to authorise detention under section 32(3) of the Ordinance), were represented by Ms Lynn Hui, Government Counsel, who also signed the written response.

4.This is my Decision.

B.  Background Facts leading to the Present Detention

5.The Applicant is a Vietnamese national born in 1978.

6.He is a returned removee.  In the authorities’ records, he last entered Hong Kong in 2001 as a visitor, but soon over-stayed by failing to depart within the limit of stay granted to him.  He was convicted of a breach of condition of stay in February 2001 and was removed from Hong Kong back to Vietnam in the same year.

7.The authority has no record of his returning to Hong Kong via any formal channel thereafter.

8.But on 17 March 2015, he appeared in Hong Kong and surrendered himself to the Immigration Department claiming that he had sneaked into Hong Kong the day before.  He lodged a non-refoulement claim (“NRC”) on the same day.

9.A Removal Order was issued against him on 15 April 2015, but no attempt was made to remove him until fairly recently because by the operation of the Ordinance and the removal policy then adopted by the Government, the Director would tolerate a claimant’s unlawful stay in Hong Kong as long as there was some NRC or related legal proceedings in process.

10.Such a claimant, as was the Applicant in this case, would usually be released on immigration recognizance and be allowed to live in the community largely freely, subject to the duty to report immigration recognizance to the Director regularly.

11.But the Applicant failed to report recognizance on 22 February 2018 and absconded.  A warrant was issued against him in the Shatin Magistracy on 12 March 2018.  But he remained undetected by law enforcement agents in the next 4 years, until he surrendered himself to the police on 1 March 2022.  In a letter dated 12 December 2022, but which was only received by the Removal Assessment and Litigation Branch of the Immigration Department on 4 January 2023, he explained that the reason for his absconding was because he was afraid of being sent back to Vietnam.

12.On the day following his surrender, i.e. on 2 March 2022, he pleaded guilty to unlawfully remaining in Hong Kong and was sentenced to 390 days’ imprisonment.

13.After he was discharged from prison in November 2022 followed by a short period of quarantine, the Director continued to grant immigration recognizance.

14.But the Applicant’s release on recognizance was revoked on 4 January 2023, on which date the present detention began.

C.  Steps towards Removal

15.At the time when the present detention started, the Applicant did not have any extant NRC or related legal proceedings.  He had not taken any further action after his appeal to the Torture Claim Appeal Board/Non-refoulement Claims Petition Office (“Board”) was rejected in January 2018.

16.The only removal obstacle was the need to replace his Vietnamese passport which already expired on 6 March 2019, and to seek the Vietnamese authorities’ approval to allow him to re-enter his home country.  The Director liaised with the Vietnamese authorities for such purposes soon after the Applicant was taken into detention.

17.The Vietnamese authorities approved the Applicant’s re-entry on 13 February 2023, and issued a replacement travel document to him on 15 February 2023.  Thus, all removal obstacles had been cleared within 6 weeks after the Applicant was taken into detention.

18.On 17 March 2023, the Immigration Department wrote to the Security Bureau asking for a deportation order to be issued against the Applicant.  On 30 March 2023, the Deportation Order was issued.

19.By 19 April 2023, the Director had secured a seat for the Applicant on a flight from Hong Kong to Vietnam fixed for 24 April 2023.

20.However, the scheduled repatriation operation was eventually cancelled, because the Director later determined that a letter written by the Applicant in early April 2023 should be treated as a request to lodge a ‘subsequent claim’ under the Ordinance (which is a further NRC after the original claim had failed).

21.Since the commencement of the present detention on 4 January 2023 until 2 April 2023, the Applicant had consistently indicated his willingness to return to Vietnam.  He had even made submissions in January 2023 requesting to cancel all NRCs and other applications so as to return to Vietnam.  In March 2023, the Applicant made written submissions stating that his parents, wife, son and two siblings were all in Vietnam and he had no objection to his deportation.

22.However, he apparently had a change of heart in a letter dated 2 April 2023 addressed to the Director.  The letter was written in Vietnamese and was later translated into English for the Director.  In gist, the Applicant said that he was informed by his family and his friend that his creditors in Vietnam (which are members of a triad group) had learned about his upcoming return and had threatened his family members. He was told that it would be very dangerous for him to return.  The Applicant requested the Director to allow him to continue to seek asylum in Hong Kong for a longer time.

23.In an interview on 20 April 2023, the Applicant refused to return to Vietnam.  He requested cancellation of his applications for repatriation, and asked to be allowed to continue to seek asylum in Hong Kong.  This was in the context of his request to make a ‘subsequent claim’.

24.The request was eventually rejected by the Director on 16 June 2023, that is a little over 2 months from the date of his letter treated as a request to file a ‘subsequent claim’. Thus, no ‘subsequent claim’ was ever lodged.

25.In that two-month period, the Director first relayed the ‘subsequent claim’ request to the Duty Lawyer Services (“DLS”) to see if DLS would provide publicly funded legal assistance to the Applicant.  By letter dated 12 May 2023, the DLS informed the Director that it would not represent the Applicant.  By letter dated 15 May 2023, the Director relayed the DLS’s decision to the Applicant, informed him of his right to retain a private lawyer, and asked him to provide additional information to support his request by 29 May 2023.  By the stipulated deadline, the Director only had from the Applicant 3 hand-written letters (including the 2 April 2023 letter) asserting no more than what I have already summarized above.  About 3 weeks after the submission deadline, the Director rejected the Applicant’s request to file a ‘subsequent claim’ on 16 June 2023.

26.However, by 16 June 2023, another removal obstacle had already come into existence.  On 5 June 2023, the Applicant sought leave from the Court of First Instance (“CFI”) to challenge the Board’s dismissal of his NRC appeal made in January 2018. As the chronology indicates, when the leave application was made, it was more than 5 years out of time.

27.In late June 2023, the CFI requested the Director’s assistance in processing the Applicant’s much belated leave application, including updating his corresponding address and providing documents, which assistance the Director had provided.

28.By letter dated 11 July 2023, the DOJ on behalf of the Director requested the Court to accord priority to the Applicant’s case.  By letter dated 13 July 2023, the CFI said that the judgment for the Applicant’s leave application will be ready for handing down as soon as possible or in early September 2023.

29.As it happens, the CFI was able to deal with the case earlier than it had indicated.  In a decision dated 20 July 2023, the CFI (1) refused the application for extension of time to apply for judicial review, and (2) dismissed the application for leave to apply for judicial review.  The Deputy Judge giving that decision found that there was no valid ground from the Applicant to challenge the Board’s decision, and that the Applicant had failed to show that he has any realistic prospect of success in his proposed judicial review.

30.During the reviews of detention of the Applicant, it was decided that release of the Applicant on recognizance was not recommended on the grounds that: (1) the Applicant’s removal is going to be possible within a reasonable time; (2) he may constitute a threat/security risk to the community; (3) he may abscond and/or (re)offend; (4) he does not have close connection or fixed abode in Hong Kong; and (5) there are no other circumstances in favour of his release.

31.I was originally informed by Ms Hui in the initial response that the Applicant’s deportation had been tentatively fixed for 15 September 2023.  But I thought it likely that, in light of the earlier than anticipated CFI decision, the arrangements for the Applicant’s deportation would be brought forward to an earlier date.  As the Director was apparently awaiting the CFI decision (when setting the tentative date for removal in September 2023), and as there is no longer any legal or practical impediment to removal, I saw no reason why earlier arrangements could not and should not be made.

32.Indeed, at the hearing, Ms Hui informed me that following the CFI decision, the Director has made fresh arrangements to effect deportation of the Applicant.  She provided a copy of the electronic flight ticket for the Applicant, to travel from Hong Kong to Hanoi in Vietnam on this coming Thursday, 27 July 2023.

D.  The Applicant’s Submissions

33.In support of his habeas corpus application, the Applicant filed a very brief affirmation in Chinese.  The content of the affirmation has been officially translated by the Court:

The Immigration Department failed to scrutinize the fact that given my background, once repatriated, (my) personal safety would come under serious threat.  I would like to remain in Hong Kong.

34.At the oral hearing, the Applicant further submitted (in my summary):

(1)  He has been detained for a long time notwithstanding that he has committed no offence in Hong Kong to justify it.

(2)  He is aware that he is the subject of a Deportation Order, but he had made a new application to the CFI.

(3)  He had previously applied to go back to Vietnam, but when just about to do so he was given news that he was told that he should not go for the time being, as his personal safety would be under threat.  That is why he cancelled all applications to go back.

(4)  That is also the reason why he intended to apply to seek asylum and to stay, for a certain period of time.

(5)  He hopes that this Court would allow him to stay in Hong Kong for a certain period time.

(6)  The Immigration Department are forcing him to go back to fight to Vietnam without his consent.

35.As I indicated to the Applicant during the hearing, and as is worth noting, submissions relating to whether or not the Applicant should be removed or deported from Hong Kong are not relevant to the determination of the current application.  That question falls to be determined in the NRC and/or NRC-related proceedings.  In this case, there is a valid and extant Removal Order and a valid and extant Deportation Order (with no challenge to either).  As a result, the Applicant is liable to be removed or deported from Hong Kong, and I am not addressing the question whether the Applicant should be deported.  The question which arises in these proceedings is whether the Applicant can continue to be lawfully detained until he is removed or deported.

36.As to the point about being forced to return to Vietnam without his consent, the Applicant of course entered Hong Kong without consent.  He was first subject to a Removal Order, and is now also subject to a Deportation Order.  Obviously, giving effect to those orders does not require his consent.

37.As to the new application made by the Applicant to the CFI, I pointed out to him that it had been recently decided against him (see above).

38.As a result, the core submission made by the Applicant as to why his detention had become or would become unlawful relates to the length of the period of detention against the fact that he has not committed any criminal offence to justify being detained for so long.  That is obviously an important factor to take into account, and I do so below.

E.  Applicable Principles

39.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.

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

F.  Whether Detention has become unlawful

41.The Applicant has always been detained pursuant to prima facie lawful authority since 4 January 2023:

(1)   From 4 January 2023 to 8 March 2023, he was detained under section 32(3A) which authorizes the detention of a person against whom a removal order is made pending his removal.  The Removal Order remains extant.

(2)   From 9 March 2023 to 30 March 2023, he was detained under section 29 which authorizes detention for the purpose of enquiring if a deportation order should be made.  The Deportation Order was made on 30 March 2023.

(3)   From 30 March 2023 till now, he has been detained under section 32(3) which authorizes detention of a person against whom a deportation order has been made.  The Deportation Order remains extant.

42.The question then arises whether the overall circumstances have rendered continued detention unreasonable, and hence unlawful.

43.The starting point is that the Applicant has been detained up to today for a period of 203 days, or about 6½ months.  It is against that period that the other factors are to be weighed and balanced.

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

45.I accept that the Director has always been using the detention powers for the purpose of removal.  There is no reason to suggest otherwise in the factual circumstances of this case.  HS1 is satisfied.

46.On balance, I am also satisfied that the Director has been acting with diligence and expedition.  The need to replace the Applicant’s passport and to seek the Vietnamese authorities’ approval for re-entry – which were the only obstacles at the beginning of the present detention – were quickly resolved by the Director within 6 weeks’ time, owing to the active liaison with the Vietnamese authorities.

47.I have some concern as to why apparently not much was done during the period from 15 February 2023 to 2 April 2023 (the date of the Applicant’s letter which was later treated as a request to lodge a subsequent claim) when the Applicant was free from any removal obstacles.  I note that the Deportation Order was sought in addition to the Removal Order, and that it was issued on 17 March 2023.  But that in and of itself was not an action to facilitate the actual removal of the Applicant, and in some sense might be thought to have delayed it.  That said, I also recognize that some period of time would be needed to arrange the logistics of a repatriation operation which was put together by 19 April 2023.

48.After the Applicant had requested to file a ‘subsequent claim’ by letter dated 2 April 2023, I have no doubt that the Director had acted promptly and diligently in resolving his subsequent claim. As for the leave application filed on 5 June 2023, whilst the date for handing down of judgment is a matter for the Court, the Director has done what he can, by providing information and documents at the Court’s request and by requesting the Court to accord priority to the case.  As has been shown by the CFI’s decision dated 20 July 2023, the Court has accorded indeed accorded the requested priority.  Overall, I am of the view that the HS4 is satisfied.

49.As said, the Applicant was cleared of all obstacles to removal by 15 February 2023, and by then the detention had lasted for only 6 weeks.  A return flight was already scheduled for 24 April 2023, by then he had been detained for less than 4 months.  But for the Applicant’s own actions in requesting to file a ‘subsequent claim’ (which was supported by no more than the Applicant’s bare allegation) and in instituting the leave application (which was more than 5 years out of time, and which does not jump out as having any merit), he could have been released from detention on 24 April 2023, albeit in Vietnam.

50.As shown in Director’s decision dated 16 June 2023, the Applicant’s request to lodge a subsequent claim was devoid of merit.  The Applicant’s request, resting solely on his own bare allegation that his creditors still threatened to harm him or his family, bears the hallmarks of a tactical ploy to delay removal.

51.The possibility of abuse is even more apparent in the Applicant’s grossly late application to the CFI on 5 June 2023, for leave to challenge by way of judicial review the Board’s decision made about 5½ years ago.  From the CFI’s decision, it does not appear that any explanation was offered for the significant delay, but in any event no valid grounds for review were identified, and the intended challenge had no realistic prospect of success.  Any consequent delay in release from detention is to be laid at the door of the Applicant.  It was self-inflicted, and it lies ill in his mouth in effect to seek to rely upon it.

52.In any event, if it is the Applicant’s position that he received new information which made him change his mind about being willing to return to Vietnam, the way to deal with that was by the attempt to make the ‘subsequent claim’.  He did that, but it was refused.

53.I do accept that the Applicant’s criminal record is not of the more serious category amongst the immigration detainees making habeas corpus applications before the Court recently.  He was convicted on 2 occasions, both of which were for the immigration offences relating to his overstaying.  The first conviction was for breach of condition of stay after his first entry into Hong Kong in early 2000.  The second conviction was for illegally remaining in Hong Kong, which occurred about 2 decades later, in 2022.

54.But I note that he is a returned removee, who admitted to returning illegally to Hong Kong in 2015, after he was removed from Hong Kong in 2001.  I also note the second conviction for illegally remaining was right after a period of absconding for as long as 4 years.  I am informed by Ms Hui that efforts had been made by the Immigration Department to locate the Applicant during the period, including visiting the address he provided, but to no avail.  It was later explained by the Applicant in writing that he went underground for such a long period because he was afraid to be sent back to Vietnam.  In other words, he could not be located because he did not want to be located, and he did not want to be located because he did not want to be removed from Hong Kong back to Vietnam.

55.Against this background, I agree with Ms Hui’s submission that there is a substantial risk that the Applicant would abscond if released from detention, in view of the imminent deportation first tentatively scheduled for 15 September 2023, but now arranged for 27 July 2023.

56.In view of the Applicant’s track record of absconding and his lack of local ties (he has no family in Hong Kong, but a girlfriend who is also a non-refoulement claimant), I also agree with the Director’s assessment that the Applicant may not be easily be located if he were to abscond.  That might defeat the purpose of detention, and the intention to effect deportation.

57.Looking at matters overall, and weighing all the other factors against the detention period of 203 days, I am satisfied that the detention of the Applicant has remained and will remain or continue for a period which is reasonable and lawful.  Looking backward, the period was reasonable in all the circumstances, and indeed was extended only as a result of the Applicant’s own actions.  Looking forward, continued detention is only for two more days.  The Applicant will be released from detention on 27 July 2003, albeit in Vietnam.  HS2 and HS3 are satisfied.

G.  Result

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

59.I make no order as to costs.

The applicant, acting in person

Ms Lynn Hui, Government Counsel, of the Department of Justice, for the respondent