Vu Dinh Phuong v. Immigration Department and Another

HCAL 767/2025

[2025] HKCFI 2439

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 767 OF 2025

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D E C I S I O N

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1.Introduction

1.1The Applicant is subject to a Removal Order and Deportation Order respectively dated 22 February 2023 and 7 February 2025. He has been held in immigration detention since 14 December 2024 pursuant to various sections of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the hearing before me, he has been detained for 175 days.

1.2This is my decision on the Applicant’s application for a writ of habeas corpus filed on 27 March 2025. At the hearing, the Applicant appeared in person with the benefit of an interpreter. Mr Andrew Tong, Acting Senior Government Counsel, appeared for the Director of Immigration (“Director”) and the Secretary for Security (“Secretary”).

2.Background

2.1The Applicant is a Vietnamese national. He is a repeated illegal immigrant.

2.2The Applicant first entered Hong Kong illegally from Shenzhen by boat on 12 April 2014 and was eventually removed to Vietnam on 24 October 2017 (“First Period”). In that period:

(1)  On 18 July 2014, the Applicant was convicted of (a) using a forged identity card and (2) illegal remaining in Hong Kong and was sentenced to 15 months’ imprisonment;

(2)  He lodged a non-refoulement claim (“NRC”) on 22 September 2014, which was refused by decisions made by the Director respectively on 6 October 2015 and 7 November 2016 (collectively “2015/2016 Decisions”);

(3)  In the meantime, after he had served his prison term, he was transferred to the Immigration Department for detention on 16 May 2015. An earlier Removal Order was issued against him on 10 June 2015 and he was released on recognizance on 22 June 2015;

(4)  On 8 August 2016, he submitted a written submission to withdraw his appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”) against the 2015/2016 Decisions which resulted in TCAB dismissing his then pending appeal/petition.

2.3The Applicant thereafter entered Hong Kong illegally again which he alleged he did on 15 January 2022. On 16 February 2022, he surrendered to the Police and was arrested for suspected illegal remaining.

2.4On 22 December 2022, the Applicant was convicted of illegal remaining in Hong Kong and was sentenced to 13 months’ imprisonment. Upon his discharge from prison, he was referred to the Immigration Department for detention and was subsequently released on recognizance on 29 March 2023.

2.5Since 7 December 2023, the Applicant failed to report recognizance, and eventually, he was arrested as a wanted person on 13 December 2024 and referred to the Immigration Department the following day, upon which the present detention commenced.

3.NRC and related proceedings

3.1As noted above, the Applicant’s NRC was resolved during the First Period.

3.2On 28 March 2022, the Applicant requested to make a subsequent claim, which request was refused by the director on 16 June 2022 (“Director’s Refusal”).

3.3The Applicant’s subsequently applied for leave to apply for judicial review against the Director’s Refusal, which application was dismissed by DHCJ Bruno Chan on 24 May 2023 in HCAL 326/2023 (“CFI Decision”). His subsequent attempts to challenge the CFI Decision out of time failed in both the Court of First Instance (on 3 August 2023) and the Court of Appeal (on 5 November 2024). The decision on his application for leave to appeal to the Court of Final Appeal is pending.

4.The current detention and its reviews

4.1During the following periods of the present detention, the Applicant has been or is currently detained pursuant to:

(1)  From 14 December 2024 to 19 January 2025, section 32(3A) of the Ordinance pending removal from Hong Kong pursuant to the Removal Order;

(2)  From 20 January to 7 February 2025, sections 29(1) and (2) of the Ordinance for inquiry as to whether he ought to be deported under section 20 of the Ordinance;

(3)  Since 7 February 2025, section 32(3) of the Ordinance pending removal from Hong Kong pursuant to the Deportation Order.

4.2Shortly after the commencement of the present detention, a replacement passport valid until 3 January 2026 was issued by the Consulate General of Vietnam in Hong Kong. Since then, there was neither legal nor practical impediment to the Applicant’s removal until the commencement of the present proceedings.

4.3However, throughout the present detention, the Applicant has expressed a strong unwillingness to return to Vietnam. A removal operation was arranged for the Applicant to board a removal flight on 24 March 2025 but became abortive due to his strong resistance. These proceedings were commenced 3 days later.

4.4In the latest review conducted on 29 May 2025, the Applicant’s continued detention was justified on the following bases:

(1)  The Applicant's removal was going to be possible within a reasonable time;

(2)  The Applicant posed, or was likely to pose, a threat or security risk to the community;

(3)  The Applicant might abscond and/ or (re)offend;

(4)  There were no other circumstances in favour of the Applicant’s release.

5.The Applicant’s submissions

5.1The Applicant's written materials put forward the following matters:

(1)  He has never been convicted of a serious criminal offence and is not a threat or security risk to the community;

(2)  His removal is not going to be possible within a reasonable time;

(3)  His NRC has not been finally determined, and even were the pending application for leave to appeal to the Court of Final Appeal unsuccessful, he is still entitled to lodge a yet further subsequent claim;

(4)  He promises not to abscond is willing to abide by reporting conditions;

(5)  He offers $1,000 as bail money;

(6)  Overall, the length of his detention has become unreasonable;

(7)  He is suffering emotional and psychological trauma for being unlawfully detained.

5.2The Applicant confirmed at the hearing that the above represent an accurate summary of his written materials and did not have any supplemental submissions.

6.The applicable principles

6.1The applicable principles are set out in Harjang Singh v Secretary for Security [2022] 4 HKLRD 99. I have in particular borne in mind the summary set out at §164 thereof.

6.2I remind myself that the burden is on the Respondents to an application for a writ of habeas corpus to justify the lawfulness of the Applicant's detention.

6.3Under Section 32(4A) of the Ordinance, the detention of a person 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, (2) whether the person poses, or is likely to pose, a threat or security risk to the community, (3) 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 and (4) factors that directly or indirectly prevent or delay the person's removal that are not within the control of the Director.

6.4The Court of Appeal has provided guidance in Johnson Benjamin v Director of Immigration & Anor [2023] HKCA 1368 on, inter alia, how the court ought to approach a detainee's own unreasonable behaviour or conduct in assessing the reasonableness of the length of his detention. It is stated 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 behaviours or conducts 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 and 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.”

7.Analysis

7.1During the present detention, the Applicant is and has been detained pursuant to the identified sections of the Ordinance. It follows therefore that there is and has been prima facie lawful authority to detain the Applicant.

7.2The question which falls for determination is whether the detention has become unreasonable in all the circumstances, and hence unlawful. The starting point is the period of detention, namely 175 days, against which the various other factors must be weighed and balanced.

7.3I accept that, throughout the period of detention, the intention of the Director/Secretary is to remove the Applicant and that has been the only purpose of the Applicant's detention. HS1 is satisfied. I also accept that the Director/Secretary have acted with diligence and expedition to effect the Applicant's removal. HS4 is satisfied. As at the commencement of the present detention, there was no legal impediment to the Applicant’s removal by reason of the Updated Removal Policy. The remaining practical impediment was resolved shortly thereafter by the issuance of the replacement travel document. A repatriation operation was scheduled on 24 March 2025. That repatriation operation became abortive due to the Applicant’s strong resistance and he thereafter commenced the present proceedings.

7.4As things presently stand, another repatriation operation has been schedule for 11 June 2025, only days after the present hearing.

7.5In my view, there is limited material which I can put on the weighing scale to favour the Applicant’s release.

7.6The most which can be said in favour of his release is that given the nature of the offences for which he was convicted, I am prepared to proceed on the basis that his case is not one which should generate undue concern over him posing a threat or security risk to the community. In the light of the criminal records, I am also prepared to proceed on the basis that the risk of the Applicant re(offending) is not at the serious end of the spectrum. His previous convictions are related to his illegal entries and largely not to any breaches of the law during his stay in Hong Kong.

7.7However, there is an obvious risk of absconding given the history and the Applicant's reluctance to return to his home country, which risk is exacerbated by the fact that he has no local connection. I do not regard the promise made and bail money offered by the Applicant are sufficient to outweigh the risk. Absconding would defeat the primary purpose of effecting removal, for which the power to detain has been conferred.

7.8I accept Mr Tong’s submission that the commencement of the present application can justifiably been seen as a tactical maneuver to delay deportation.

7.9I also accept Mr Tong’s submission that the length of the present detention has been extended only because of the Applicant’s refusal to cooperate. Had he cooperated, he would have been removed (and hence released from detention) in March 2025. It is also important for the Applicant to understand that flatly refusing to board the repatriation flight does not improve his chances of being released on recognizance.

7.10As regard the Applicant’s claim that he is suffering from emotional and psychological trauma, it is put forward on the basis that he is unlawfully detained. That premise is erroneous, and in any event, the extended period is entirely self-induced.

7.11Overall, weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

8.Conclusion

8.1For the above reasons, I am satisfied that the Applicant’s detention, and likely foreseeable future period of detention, has been and will remain lawful.

8.2I therefore dismiss the present application with no order as to costs.

The Applicant, acting in person

Mr Andrew Tong, Senior Government Counsel (Ag.), of the Department of Justice, for the 1^st and 2^nd Respondents