Nguyen Thi Kim Ngan v. Hong Kong Sar Government

HCAL 2391/2023

[2024] HKCFI 531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2391 OF 2023

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REASONS FOR JUDGMENT

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A.  Application

1.By an ex parte application filed on 29 December 2023, 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 Immigration Department.

2.At the end of the hearing I allowed the application with reasons to be handed down later. These are my reasons.

B.  Background of Applicant

3.The Applicant is a Vietnamese national who entered Hong Kong illegally on 25 July 2021 and was arrested on 27 July 2021. She was convicted on 27 August 2021 of the offence of “having landed in Hong Kong unlawfully, remained in Hong Kong without the authority of the Director of Immigration and take any employment or establish or join in any business” and was sentenced to 15 months’ imprisonment.

4.After serving her sentence, the Applicant was transferred to the Immigration Department (the “Department”) and was detained since 27 May 2022 until her release on recognizance on 15 June 2022.

5.A removal order (the “Removal Order”) was made against the Applicant on 6 July 2022.

6.The Applicant was detained since 23 November 2023 upon the cessation of her recognizance. At the time of the hearing, the Applicant has been detained for 85 days.

C.  NRC related proceedings

7.The Applicant first lodged her non-refoulement claim (the “NRC”) on 20 November 2021. The Director of Immigration (the “Director”) rejected the Applicant’s NRC on 21 January 2022 by a notice of decision (the “Director’s Decision”). The Applicant’s application for late filing of the Notice of Appeal to the Torture Claims Appeal Board against the Director’s Decision was refused on 28 October 2022 (the “TCAB Decision”).

8.The Applicant’s application to the Court of First Instance for leave to apply for judicial review against the TCAB Decision (the “JR Application”) in HCAL 1223/2022 was heard on 31 January 2024. The court has indicated that judgment will be handed down as soon as possible or in late March 2024.

9.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.

10.Due to the outstanding JR Application in HCAL 1223/2022, there remains a legal impediment to the Applicant’s removal.

D.  Criminal Record & Sentencing Record

11.The Applicant’s criminal and sentencing record is as follows:

Date of Sentence	Offence	Sentence/Period of Imprisonment
27 August 2021	Having landed in Hong Kong unlawfully, remained in Hong Kong without the authority of the Director of Immigration and take any employment or establish or join in any business	15 months

E.  Steps towards Removal

12.The Applicant had expressed unwillingness to return to Vietnam, but she was co-operative in obtaining her replacement travel document.

13.On 23 November 2023, the Department informed the Vietnamese Consulate General of the Applicant’s detention.

14.The Applicant was interviewed by 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 her return to Vietnam) (the “VIT”) for identity verification on 14 December 2023 and approval for her return to Vietnam was granted by the VIT on 15 December 2023. Generally speaking, a replacement travel document will be issued in around 8-10 weeks after the approval to return Vietnam is granted by the VIT.

15.On 31 January 2024, the VIT indicated that the Department would be informed when the replacement travel document is ready for collection.

16.The Department had asked the court to accord priority to the Applicant’s JR Application.

F.  Applicable Principles

17.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.

18.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

19.The Applicant has set out her grounds for application in her affirmation filed on 29 December 2023. In summary, they are as follows:

(1)  Her NRC has not been completed under HCAL 1223/2022.

(2)  She cannot be removed within a reasonable time.

(3)  She can provide a surety who is a permanent Hong Kong resident.

20.The Applicant has in addition made the following oral submissions at the hearing:

(1)  She cannot go back to Vietnam until her debts have been repaid.

(2)  She has not committed another crime since her release from prison nor has she absconded whilst on recognizance.

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

H.  Lawful Authority for Detention?

22.The Removal Order was issued on 6 July 2022 and remains valid.

23.From 23 November 2023 to 30 January 2024, the Applicant was detained under section 32(3A) of the Ordinance pending removal pursuant to the Removal Order.

24.From 31 January 2024 to 15 February 2024, the Applicant was detained under section 29(1) of the Ordinance pending inquiry of whether a deportation order should be made against her.

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

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

I.  Whether Detention has become unlawful

27.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/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”).

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

HS1

29.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

30.The starting point is the length of the detention – about 85 days – against which all the other factors must be weighed and balanced.

31.For the following reasons, I am not satisfied that HS2 and HS3 are satisfied:

(1)  Pursuant to the updated removal policy, there remains a legal impediment to the Applicant’s removal due to her JR Application.

(2)  Despite that, the Applicant was taken into custody on 23 November 2023 before the hearing for her JR Application even took place. She was eventually detained for more than 2 months before the hearing took place on 31 January 2024.

(3)  After the hearing, the court had indicated that judgment for the JR Application is expected to be handed down as soon as practicable, or in late March 2024. This would likely lead to another 2 months of detention after the hearing for the JR Application.

(4)  Ms Tse for the Respondent accepted that prior to the Applicant’s detention, there was nothing to indicate that she had deliberately delayed the progress of her JR Application.

(5)  After the Applicant had served her previous prison sentence, she had not committed another crime for more than a year after her release.

(6)  The Applicant had also reported recognizance as required since her release from prison without fail. This is the case even when the Applicant was asked to report to Castle Peak Bay Immigration Centre instead of Ma Tau Kok Detention Centre (the usual reporting venue), which is often an indication that recognizance will be ceased and the person will be detained.

(7)  Although the Applicant had indicated her unwillingness to return to Vietnam, she had been cooperative with removal formalities in December 2023.

(8)  There is therefore little to suggest that there was a high risk of re-offence or a risk of abscondence.

(9)  Against such circumstances, Ms Tse for the Respondent was unable to explain why the Director decided to cease the Applicant’s recognizance on 23 November 2023 and to detain the Applicant, before the hearing for her JR Application. The only submission made in support of the decision was that it would assist with the application and processing of the Applicant’s travel document.

(10)  Ms Tse submitted that based on the Department’s experience, it is likely that the result of the JR Application would be available soon, and the Applicant could be removed within a reasonable period thereafter.

(11)  Whilst it might be said that applications for leave to commence judicial review for the majority of the non-refoulement claimants had proven to be unsuccessful in the past, it cannot be assumed that all such applications would fail in the end.

(12)  So long as the policy of the Department remains that non-refoulement claimants will not be removed until after the dismissal of their applications for leave to commence judicial review by the Court of First Instance, in my view it will be wrong (save for exceptional circumstances) for the Department to commence detention “in preparation for their removal” even before the hearing for the leave application takes place.

(13)  It is not disputed that if leave were given by the Court of First Instance for a non-refoulement claimant to commence judicial review, he/she will not be removed under the Department’s current policy, until the judicial review is dismissed. Therefore it cannot be said that there is sufficient ground to believe that the Applicant will be removed within a reasonable time, when the hearing for an application for leave to commence judicial review has yet to take place.

(14)  Detention in advance cannot be justified purely for the convenience of the Department if and when removal takes place.

(15)  The Department’s recent practice of detaining a non-refoulement claimant before an application for leave to commence judicial review has been determined by the Court of First Instance often leads to the Department having to write to the court urging for a case to be accorded with priority in view of the claimant’s detention and habeas corpus application. This imposes undue pressure on the court of first instance to render their judgment, in an increasing number of cases. This practice is not to be encouraged.

(16)  The Applicant has provided a Hong Kong permanent resident to stand as surety and to provide HK$10,000 as conditions for the recognizance. With the history of the Applicant, who had in the past reported recognizance without fail, I am of the view that the risk of abscondence is low.

(17)  There is also no indication of a high risk of re-offence.

(18)  Overall, taking into account all the relevant factors, I am not satisfied that HS2 and HS3 are met.

HS4

32.For the sake of completeness, I am of the view that the Director had diligently pursued the Applicant’s removal (even before removal can be effected under the current policy) and I am satisfied that HS4 is satisfied.

J.  Result

33.For the above reasons, I allow the Applicant’s application for writ of habeas corpus with no order as to costs.

34.Recognizance be granted to the Applicant on the following conditions:

1)  A Hong Kong permanent resident to stand as surety with HK$10,000 cash as surety;

2)  The Applicant do report to Recognizance (Reporting) Office, Castle Peak Bay Immigration Centre every two weeks on Thursdays from 29 February 2024.

3)  The Applicant do update her contact number and address with the Department if there is any change thereto.

The applicant, acting in person

Ms Kristy Tse, Government Counsel, of the Department of Justice, for the respondent