Le Van Tai v. Immigration Department

HCAL 1191/2025

[2025] HKCFI 2897

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1191 OF 2025

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BETWEEN

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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 22 May 2025 seeking his release from Tai Tam Gap Correctional Institution (“TGCI”)  where he is presently being detained (“the Application”).  He has been detained since 18 March 2025 making the period of detention to date 109 days (“the Detention”).

2.On 26 May 2025, I had 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.A Response/Skeleton Submissions for the Respondent dated 19 June 2025 (“the Response”)  has been lodged.  In the Response, it is stated that although only the Director is named as the Respondent, the power to authorize the Applicant’s previous detention and current detention under ss. 29(1)  and 32(3)  of the Immigration Ordinance, Cap. 115 (“IO”)  respectively are conferred on the Secretary for Security (“the Secretary”)  therefore and the Response is filed on behalf of both the Director and the Secretary (collectively, “the Respondents”).

4.At today’s hearing, the Applicant has appeared in person with the benefit of an interpreter.  He has confirmed that he was served the Response and a bundle of documents prepared on behalf of the Respondents.

5.This is my Decision having heard the oral submissions of the Applicant and Miss Ngai, Senior Government Counsel (appearing with Miss Lam, Government Counsel), for the Respondents.

B.   Background

B1.   Immigration status and stay in HK

6.The Applicant is a Vietnamese national born on 24 May 1994.

7.On 21 February 2016, the Applicant was arrested by the Police as a suspected illegal immigrant.  He claimed to have entered Hong Kong illegally on 21 February 2016 by boat.

8.On 23 March 2016, a removal order (“RO”)  pursuant to s. 19(1)(b)  of IO was issued against the Applicant. 

9.The Applicant was released on recognizance on 11 April 2016.

10.Whilst on recognizance:

(1)  On 20 March 2019, the Applicant was convicted of “taking employment while being a person in respect of whom a removal order is in force” and was sentenced to a total of 15 months’ imprisonment; and

(2)  The Applicant failed to report for recognizance on 21 March 2024 and was re-arrested by the Police on 18 March 2025.

11.The Applicant’s recognizance was ceased on 18 March 2025.

12.On 12 June 2025, a deportation order (“DO”)  was issued against the Applicant under s. 20(1)(a)  of IO. 

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

13.On 29 May 2017, the Applicant first lodged a NRC which was rejected by the Director on 4 August 2017 (“the Director’s Refusal”).

14.On 18 August 2017, the Applicant appealed against the Director’s Refusal but the appeal was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  30 August 2019 (“the Board’s Decision”).

15.On 11 October 2019, the Applicant applied for leave to apply for judicial review against the Board’s Decision (“the JR Leave Application”)  but was dismissed by the Court of First Instance on 8 May 2025 (“CFI Decision”).

16.On 2 June 2025, the Applicant filed an application for extension of time to appeal against the CFI Decision (“EOT Application”).

B3.  Steps towards the removal of the Applicant

17.The Applicant has a valid Vietnamese passport with validity date up to 19 January 2026.

18.During the Detention, ImmD conducted various interviews (on 31 March 2025, 9 May 2025, 15 May 2025 and 22 May 2025)  with the Applicant but he expressed his unwillingness to return to Vietnam and unwillingness to cooperate with removal arrangements.

19.At today’s hearing, Miss Ngai updated this court that since the filing of the Response, a repatriation flight to Hanoi, Vietnam has been scheduled for 8 July 2025 (4 days after today).  The Applicant was interviewed on 24 June 2025 by ImmD but he maintained his refusal to return to Vietnam and that he would not cooperate with any removal arrangement.  He was  informed of the flight scheduled for him and he was urged to cooperate with the removal arrangement as his uncooperativeness would prolong his detention and impede his removal.

B4.  Reviews of Detention

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

(1)  The Applicant’s removal is going to be possible within a reasonable time as there is no outstanding legal proceedings impeding removal;

(2)  The Applicant poses, or is likely to pose, a threat or security risk to the community given his previous convictions of crimes of serious or violent nature;

(3)  The Applicant may re-offend and is likely to engage in unlawful employment or business if released;

(4)  The Applicant may abscond as he has a record of failing to report;

(5)  The Applicant does not have close connection or fixed above in Hong Kong; and

(6)  There are no other circumstances in favour of release.

C.   The Applicant’s Submissions

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

(1)  There has yet to be a hearing or decision on the EOT Application, he may still appeal and he has also the opportunity to lodge a subsequent claim so his removal is not possible within a reasonable time;

(2)  He has never been convicted of any crime of violence and will give an undertaking not to engaged in illegal activities and hence he will not pose a security risk or threat to the community if released;

(3)  He has a friend who is a Hong Kong permanent resident willing to stand as his surety/guarantor and he will live with her at a fixed place of abode so that he can be easily located;

(4)  He is willing to report recognizance and comply with conditions imposed if released;

(5)  The Director has not taken active steps for his removal including liaising with the Consul General of Vietnam (“CG”)  regarding to issuance of a travel document;

(6)  He was not being detained for the purpose of deportation; and

(7)  He is going through emotional and psychological trauma of being detained unlawfully which has affect his physical and mental health.

22.At the hearing, the Applicant confirmed the preceding paragraph represents an accurate summary of his submissions.  He also made the following further submissions:

(1)  The documents prepared by the Respondents contained other documents regarding other applicants but not him.  (However, the Applicant was referring to two authorities contained in the Respondents’ List of Authorities which I had explained to him were previously decided case which were cited in support of the legal propositions relied upon by the Respondents);

(2)  He was currently detained at TGCI with other very dangerous criminals convicted of serious crimes such as trafficking in dangerous drugs;

(3)  Next to TGCI is a cemetery where many bodies are buried and the air quality is poor which will slowly adversely affect his health;

(4)  He is unable to sleep, has to take sleeping pills and he has a skin infection;

(5)  He has a guarantor who is willing to “sponsor” him and provide a fixed place of abode where he will reside;

(6)  He has made a EOT Application on 2 June 2025 and may further appeal.  If he is not released he will be detained for a long period of time; and

(7)  He has not committed any wrong since 2019 which was a long time ago.

23.I will take into account the Applicant’s submissions and give them such weight in the balancing exercise as seems to me to be appropriate.

D.   Applicable Principles

24.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).

25.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.

26.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.

27.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.”

E.   Analysis

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

29.There is clear prima facie authority for the detention of the Applicant throughout the Detention.  From 18 March 2025 to 29 May 2025, the Applicant was detained under s.32(3A)  of IO pending his removal from Hong Kong.  From 30 May 2025 to 12 June 2025, the Applicant was detained under s.29(1)  of IO for inquiry as to whether a DO should be made against him.  From 12 June 2025 to present, the Applicant was detained under s.32(3)  of IO pending his removal from Hong Kong.  There is no dispute that the RO and DO are valid and extant. 

30.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 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/removal within that reasonable period, he should not seek to exercise the power of detention (“HS3”); and

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

See Harjang Singh at §164(8).

31.The starting point is that the period of detention to date is 109 days against which the other factors must be weighed and balanced.

32.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 through the interviews with the Applicant to ascertain his willingness to cooperate with the removal arrangements.  Therefore HS1 is satisfied.

33.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 ascertain the Applicant’s willingness to return to Vietnam.  Although the Applicant submitted that the Director had not taken active steps to liaise with the CG regarding the issuance of a travel document, as the Applicant has already a valid travel document, this complaint is therefore misplaced.  HS4 is also satisfied.

34.Although the EOT Application is not yet determined, under the prevailing removal policy of the Government, this is not a legal impediment to removal of the Applicant, and with a valid travel document, deportation can be effected within a reasonable period (4 days from now)  if the Applicant cooperates. Whilst the Applicant suggests that he may further appeal, this also will not constitute a legal impediment to the removal.  Furthermore, any unreasonable behaviour, including not pursuing any claims with reasonable diligence which further prolongs detention will not be regarded as an unreasonable period of detention. 

35.I also accept the Director’s assessment that with the Applicant’s previous conviction of a serious nature (although not associated with violence)  as evident from the sentence imposed and going underground for a long period of time (almost a year)  whilst on recognizance, coupled with the Applicant’s stated unwillingness to return to Vietnam, there is a real risk of the Applicant absconding and/or re-offending (though the risk of the latter is not as great).  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 DO. The risks of absconding and re-offending are of critical and paramount importance in the assessment of the lawfulness of the detention.

36.In relation to the Applicant’s claimed physical and mental conditions, in view of previous decided cases, there is no reason to believe that the Applicant would not receive proper medical treatment whilst in detention, if requested and if so required: see e.g. Mansuri, Intekhab Alam and Anor v Hong Kong SAR Government (Unrep)  HCAL 2428/2018, 6 November 2018, per Chow J (as he then was)  at §27 and Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 at §30 per Coleman J.  No evidence was adduced to suggest that the Applicant is medically unfit for continued detention at TGCI.

37.I do not believe that the Applicant’s other submissions can have the effect of outweighing the matters identified in the preceding paragraphs to justify his release on recognizance.

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

F.   Conclusion

39.Accordingly, I dismiss the Application with no order as to costs.

The Applicant appeared in person

Miss Karen Ngai, Senior Government Counsel, and Miss Linda Lam, Government Counsel, of Department of Justice, for the Respondent