Nguyen Quang Hien v. The Immigration Department

HCAL 1646/2023

[2023] HKCFI 2843

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1646 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 issued on 3 April 2023 and a Deportation Order issued on 19 July 2023, issued under sections 19 and 20 of the Immigration Ordinance Cap 115 (“Ordinance”) respectively. Both of the Orders remain valid and extant.

2.The Applicant has been held in immigration detention since 24 February 2023, namely for a period of 257 days until today.

3.By application filed on 15 September 2023, the Applicant applied for a writ of habeas corpus, to seek his release from detention. I gave directions for the filing of an Initial Response, and to bring the matter to hearing today.

4.The Initial Response was filed on behalf of the Director of Immigration and the Secretary for Security, by Mr Mike Yau, Government Counsel, who has also appeared for the Director/Secretary at the hearing. The Applicant has appeared in person, with the benefit of Vietnamese interpretation.

5.This is my Decision.

B.  Background

B.1  Immigration Status

6.The Applicant is a Vietnamese national. He claims to have entered Hong Kong illegally on 5 July 2015, and surrendered himself to the Immigration Department (“ImmD”) on 15 July 2015. He was then released on recognizance.

7.As already indicated above, the Applicant is subject to valid and extant Removal and Deportation Orders.

B.2  Criminal Conviction

8.Whilst on recognizance, the Applicant was arrested on 4 April 2021, and subsequently convicted on 14 April 2022, for the offence of ‘wounding with intent’. He was sentenced to 2 years and 10 months’ imprisonment.

9.The offence was committed, as the Applicant admitted, when he attacked his Vietnamese wife with a cutter various times due to a dispute about divorce. He caused her multiple and severe facial lacerations, which hamper her mobility permanently. The Sentencing Judge found the Applicant’s actions to have constituted intentionally disfiguring his wife.

10.It can be mentioned that the Applicant and his wife have a daughter, who the Applicant told me this morning was born on 17 February 1994, and who is physically disabled. Both the wife and the daughter are illegal immigrants and unsubstantiated NRC claimants. They are both currently released on recognizance, but are subject to removal from Hong Kong, following the making of Removal Orders against both of them on 19 October 2023.

11.It was upon discharge from serving the prison sentence that the present period of immigration detention commenced.

B.3  Non-refoulement Claim (“NRC”)

12.The Applicant lodged his NRC on 15 July 2015. It was rejected by the Director on all applicable grounds on 28 April 2017.

13.On 27 June 2018, the Applicant’s appeal/petition was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) on all applicable grounds. The appeal/petition of the Applicant’s wife and daughter was dismissed on the same occasion.

14.On 5 July 2018, the Applicant lodged an application for leave to apply for judicial review against the decision of the Board. That application was consolidated with the applications of his wife and daughter. All applications were refused by the Court of First Instance (“CFI”) on 23 March 2021.

15.On 16 November 2022, the Applicant’s appeal (together with that of his wife and daughter) was dismissed by the Court of Appeal (“CA”). The CA subsequently dismissed the Applicant’s application for leave to apply to the Court of Final Appeal, on 20 September 2023.

16.The Applicant then applied to the CFA itself, but out of time. On 20 October 2023, the Registrar of the CFA issued a Rule 7(1) summons to the Applicant. Summons indicates that the CFA is presently of the view that there is no merit in the application.

17.In any event, under the updated removal policy, there is no impediment to the Applicant’s removal arising from his NRC.

B.4  Current Detention and Reviews

18.The Applicant has been detained under various provisions of the Ordinance, including section 32(2A)(a), (b) and (c), section 32 (3A), section 29(1) and (2), and lastly section 32(3). Since 2 May 2023, following transfer from the Castle Peak Bay Immigration Centre, the Applicant has been held in Tai Tam Gap Correctional Institution.

19.During detention, the Applicant has been subject to various reviews of detention. In the latest review of detention conducted on 11 October 2023, the PAS for S considered that the Applicant should continue to be detained pending his deportation. On 19 October 2023, the Director decided not to release the Applicant on recognizance on the grounds that: (1) the Applicant’s removal is going to be possible within a reasonable time; (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.

B.5  Efforts at Removal

20.The Applicant holds a Vietnamese passport, valid until 18 June 2025.

21.From February 2023, the Director has liaised with the Vietnamese authorities and the local Consulate General of Vietnam, to seek approval for the Applicant’s return to Vietnam. Approval was granted, permitting the Applicant to be repatriated as from 5 April 2023.

22.A repatriation flight was arranged for the Applicant to Vietnam on 18 September 2023, later rescheduled to 21 September 2023. However, that repatriation attempt was obstructed by the lodging of the present Application.

23.A deportation flight has now been arranged for 9 November 2023.

C.  Applicable Principles

24.The principles applicable on an application for writ of habeas corpus in cases with the present context are well-established. They have been summarized by the Court of Appeal in its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781. 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 any individual case.

25.I bear in mind that the burden is on the respondent to an application for writ of habeas corpus to justify the continued lawfulness of the detention.

D.  Applicant’s Submissions

26.Together with his application, the Applicant filed a three-page appendix containing his written submission in support of the application. It is a pre-printed submission, where the Applicant has handwritten in the date of the commencement of his detention at two points. However, the date he has given (apparently because of the almost erased pencil instructions to give the date when he commenced detention attain Tam Gap) is 2 May 2023, whereas the current period of detention in fact began on 24 February 2023.

27.The written submissions might be summarised as follows:

(1)  There has been a failure to have complied with all four of the Hardial Singh principles.

(2)  There has been a procedural impropriety in detaining the Applicant on the assumption that his criminal record is a serious conviction.

(3)  ImmD has failed to give the time of his removal.

(4)  His NRC is still under processing.

(5)  He does not pose a threat or security to the community because he has not been convicted of an offence connected to violence.

(6)  Risks of absconding or reoffending should not be argued by reference to “maybe”.

(7)  The Director has not taken active steps to effect his removal, including liaison with the Consulate General of Vietnam regarding the issuance of a travel document.

(8)  The issue of the past conviction cannot be used, because he was already released under recognizance and it is not right to use the conviction again just to detain him further.

(9)  He is remorseful for what he did wrong in the past, and promises to comply with any rules if released on recognizance.

28.These submissions reveal the potential problem with pre-printed submissions, as some of them are clearly factually wholly inapposite to the circumstances of the Applicant’s case. For example, contrary, to the submissions, (1) the Director had indicated a time for removal, but the Applicant himself had frustrated it by making this application, and (2) the Applicant was convicted of an offence of violence, being that of ‘wounding with intent’ as described above.

29.At the hearing, the Applicant asked that he be released on recognizance to be able to take care of his physically disabled daughter, now aged nearly 30 and living in Mongkok. In reply, he simply said that he would let the application be, having made it, but he hoped that the Court would grant the application.

30.I will take such submissions as are relevant to this application into account in my analysis below, even if I do not specifically mention all of those matters.

E.  Has Detention Become Unlawful?

31.The Applicant has been detained in part under the provisions that permit detention for inquiry as to the issuance of a Removal Order, and/or a Deportation Order. He has also been detained pending removal under the Removal Order and the Deportation Order subsequently issued as a result of those enquiries. There has therefore been throughout the period of detention prima facie lawful authority for that detention.

32.The question therefore arises as to whether the detention has become unlawful as a result of becoming unreasonable in all the circumstances. This requires assessment by reference to the Hardial Singh principles.

33.The starting point is that the Applicant has been detained for a period of 257 days until today, and it is against that period of detention that the other factors are to be weighed and balanced.

34.I am satisfied that the Director has throughout the period of detention intended to remove or deport the Applicant from Hong Kong, and has detained him only for that purpose. Therefore, HS1 is satisfied.

35.It is also clear that the Director has exercised reasonable diligence in seeking to effect the removal of the Applicant from Hong Kong. But for the making of this application, the Applicant would already have been removed, and his detention would already have ceased, on 21 September 2023. Therefore, HS4 is satisfied.

36.The delay in removal is the result of the Applicant’s obstructive stance, including by bringing these proceedings which are bound to have had the opposite effect than that which they purport to seek. The making of a habeas corpus application has had the practical effect of creating a legal impediment to removal, and hence release from detention – whilst at the same time the application purports to seek immediate release from detention.

37.Nevertheless, the repatriation fight has now been arranged for 9 November 2023, two days from now. The real timescale for effecting the Applicant’s removal within a reasonable time is apparent.

38.I also accept Mr Yau’s submission that there is a real risk of the Applicant re-offending. The Applicant was convicted of a violent crime, with a custodial sentence of nearly 3 years’ imprisonment, that crime having been committed as the Applicant’s way of dealing with a dispute with his own wife. It is fair to say that the Applicant’s tendency towards violence in the context of a dispute identifies a real risk of re-offending, where the consequences of any such re-offending are potentially very serious.

39.I also take into account that the Applicant committed the offence whilst released on recognizance. Of itself, that identifies scant regard to the requirements of the terms of such release. Further, it is apparent that the Applicant’s uncooperativeness is to seek to prevent or at least to delay his removal from Hong Kong. Now that the removal is again imminent, and the Applicant has expressed strong unwillingness to return to his home country on numerous occasions, the risk that he would abscond seems to me to be high.

40.I do not think the Applicant’s family connections weigh strongly in favour of release. First, I note that the victim of the Applicant’s crime was his wife, who the Sentencing Judge found to be a victim of a deliberate attempt to disfigure her. Secondly, the Applicant obviously has not been taking any role in care of his daughter during his incarceration (which began upon his arrest in April 2021), and there is no evidence that the daughter is particularly in need of any care from the Applicant. Thirdly, in any event, both the wife and daughter are subject to removal from Hong Kong under Removal Orders, and any desire for the family to be reunited can and must be achieved outside Hong Kong.

41.In all the circumstances, I accept that HS2 and HS3 are also satisfied.

42.The Applicant’s present detention of 257 days, and the foreseeable future period of detention of a further 2 days until his removal/deportation from Hong Kong on 9 November 2023 has remained, and will continue to remain, lawful throughout.

F.  Result

43.The Applicant’s application for writ of habeas corpus is dismissed, with no order as to costs.

The applicant, acting in person

Mr Mike Yau, Government Counsel, of the Department of Justice, for the respondent