Nguyen Hong v. V. Director of Immigration

HCAL 876/2025

[2025] HKCFI 2274

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 876 OF 2025

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DECISION

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A.  Introduction

1.I have before me an application for writ of habeas corpus by the Applicant filed on 11 April 2025 seeking his release from Castle Peak Bay Immigration Centre where he is presently being detained (“the Application”).  He has been detained since 27 October 2024 making the period of detention to date 215 days (“the Detention”).

2.On 16 April 2025, I directed the Director of Immigration (“the Director”) named as the respondent in the Application, to inter alia lodge and serve a response to the Application and the Applicant’s Affirmation filed in support of the Application.

3.An Initial Response for the Director dated 19 May 2025 (“the Response”) has been lodged. 

4.At today’s hearing, the Applicant has appeared in person with the benefit of an interpreter.  He confirmed that he has been served a bundle of the documents which contained the Response.

5.This is my Decision having heard the oral submissions of the Applicant and Miss Wong.

B.  Background

B1.  ;Immigration status and stay in HK

6.The Applicant is a Vietnamese national born on 29 September 1983.

7.He was arrested by the Police on 16 December 2021 for being a suspected illegal immigrant.

8.He was released on recognizance on 4 January 2022.

9.On 18 March 2022, a removal order (“RO”) under s.19(1)(b) of the Immigration Ordinance, Cap. 115 (“IO”) was made against the Applicant.

10.On 8 July 2024, the Applicant failed to report recognizance and was arrested by the Police for being a wanted person on 26 October 2024.

B2.  The Applicant’s Non-Refoulement Claim (“NRC”) and related legal proceedings

11.The Applicant first lodged a NRC on 23 December 2021.  On 27 May 2022, the Director refused the Applicant’s NRC.

12.On 9 June 2022, the Applicant appealed against the Director’s refusal of the Applicant’s NRC but the appeal was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) on 28 April 2023.

13.On 20 December 2024, the Applicant applied for leave to apply for judicial review against the Board’s decision (“the JR Leave Application”). 

14.The JR Leave Application was heard on 16 April 2025.

B3.  Steps towards the removal of the Applicant

15.The Applicant was informed by the Director of re-entry seeking arrangements at an interview on 13 June 2024.   Whilst he had agreed to and did attend interview with the Vietnamese Interview Team on 7 November 2024 and approval for his return was granted, in subsequent interviews on 7 November 2024, 10 January 2025, 21 March 2025, and 3 April 2025, he indicated his refusal to return and that he would not cooperate with immigration arrangement.  He was explained that in accordance with s.32(4A) of IO, detention would not be unlawful if he prevents or delays removal, and he was informed that his uncooperativeness would prolong his detention and impede his removal.

16.On 19 December 2024, a Vietnamese passport (valid until 19 December 2025) was issued to the Applicant by the local Vietnamese Consulate General.

B4.  ;Reviews of Detention

17.The last review of detention conducted by the Director was on 24 April 2025.  Having considered and balancing the following factors, it was decided by the Director that the release of the Applicant on recognizance was not warranted:

(1)  There is no sufficient reasons to believe that the JR Leave Application cannot be determined within a reasonable period of time.  DHCJ K W Lung has estimated that judgment will be ready for handing down as soon as possible or in mid-June 2025. Once determined, arrangements will be made to effect his removal as soon as practicable;

(2)  The Applicant has previously absconded and was arrested during recognizance;

(3)  The Applicant had previously failed to comply with the terms/conditions of recognizance; and

(4)  There was a substantial risk of absconding given the Applicant’s unwillingness to return coupled with the lack of local ties.

18.In the Applicant’s Affirmation, essentially the following submissions were made:

(1)  He was previously arrested because of his lack of knowledge and understanding about the non-refoulement claim procedure but he is regretful of his actions and will make amends;

(2)  He has no criminal record in Hong Kong; and

(3)  His JR Leave Application is still progressing.

19.At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  When asked if he had further submissions in relation to the Application to the court today, he also supplemented that he was arrested and detained for failure to report because he was not feeling well for 2 months and he had paid a fine.  He also mentioned that he was asked to sign a removal order but it was in English and not explained to him.

20.I will take into account these submissions and give them such weight in the balancing exercise as seems to me to be appropriate.

C.  Applicable Principles

21.The applicable principles to be applied in an application for habeas corpus are well-established.  They were set out by the Court of Appeal in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99 (see in particular, the summary of the principles at §164).

22.I also remind myself that the burden is on the respondent to an application for writ of habeas corpus to justify the lawfulness of the applicant’s detention.

23.Under s.32(4A) of IO, the detention of a person under s.32 shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including:

(1)  Whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, including the person not obtaining, or not providing assistance to obtain, any authorization from the relevant authorities of a place outside Hong  Kong that is required for the person’s entry to that place;

(2)  The time required for the issue of the authorization referred to in (1);

(3)  Whether the person poses, or is likely to pose, a threat or security risk to the community; and

(4)  Factors that directly or indirectly prevent or delay the person’s removal that are not within the control of the Director.

24.Moreover, the Court of Appeal recently provided guidance in Johnson Benjamin v Director of Immigration [2024] 1 HKLRD 582 on how the court ought to approach a detainee’s own unreasonable conduct and acts which caused, necessitated or prolonged any period of detention.  See at §29(3):

“In our view, in general, any period of a detention which is caused, necessitated or prolonged by a detainee’s own unreasonable behaviour or conduct 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 or 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.”

D.  Analysis

25.With the above principles in mind, I consider whether the Detention is lawful.

26.There is clear prima facie authority for the detention of the Applicant throughout the Detention under s.32(3A) of IO.  There is no dispute that the RO is valid and extant.  Although the Applicant asserted that he has not been explained the RO, at today’s hearing Miss Wong submitted to me an “Acknowledgment of the Summary of Facts and Reasons for Removal” dated 5 May 2022 which the Applicant confirmed contained his signature.  That document stated that he had acknowledged receipt of a copy of the written Summary of Facts and Reasons for Removal which has been explained to him clearly by a Chief Immigration Assistant in Vietnamese with the assistance of an interpreter and the contents of which he understood.  Given the RO is in force against him, and there was never any appeal against the making of RO (I was also shown a signed Declaration of Intention Not to Appeal against the RO by Miss Wong), he may be detained pending his removal under s.32(3A) of IO.

27.The question which then falls for determination is whether the detention has become unreasonable in all the circumstances and hence unlawful.  That question requires an assessment in accordance with the Hardial Singh principles, namely that:

(1)  The Director must intend to deport/remove the person and can only use the power to detain for that purpose (“HS1”);

(2)  The deportee/removee 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 Director will not be able to effect deportation/removal within that reasonable period, he should not seek to exercise the power of detention (“HS3”); and

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

See Harjang Singh at §164(8).

28.The starting point is that the period of detention to date is 215 days, against which the other factors must be weighed and balanced.

29.I accept that the Applicant has been detained for the purpose of removal, and that the power of detention is being used only for that purpose.  This is evident from the Director’s efforts in seeking approval for his return to Vietnam and obtaining a travel document for the Applicant.  HS1 is satisfied.

30.I also accept that the Director has acted with reasonable diligence and expedition to effect the Applicant’s removal.  This is evident from the Director’s steps to seek the travel document and writing proactively to the High Court to accord priority to the JR Leave Application.  HS4 is also satisfied.

31.Although the JR Leave Application has not been determined, with the indication from the Deputy High Court Judge, it is reasonable to think that removal can be effected within a reasonable period if it is resolved against the Applicant and if the Applicant cooperates with the immigration removal procedure.  ;Any unreasonable behavior which prolongs detention will not be regarded as an unreasonable period of detention.

32.Although the Applicant has been detained for a long period of time, had he acted promptly to file his JR Leave Application (which was over 16 months late) it might have been determined even before the commencement of the Detention.  Based on Johnson Benjamin (see §§25-26 and 29), the period of detention caused or necessitated by his own unreasonable conduct in delaying the disposal of his NRC and related proceedings should not be regarded as an unreasonable period of detention.

33.I accept the Director’s assessment that with the Applicant’s history of absconding, whilst on recognizance, coupled with the Applicant’s stated unwillingness to return to Vietnam, there is a real risk of the Applicant absconding.  If he were to abscond, that would defeat the primary purpose for which the power to detain has been conferred and the intended effect of the RO.  ;The risks of absconding is of critical and paramount importance in the assessment of the lawfulness of the detention.

34.Overall, weighing the period of detention against all other factors, HS2 and HS3 are also satisfied.

E.  Conclusion

35.By reasons of the above, I dismiss the Application with no order as to costs.