Doan Thi Huyen v. Immigration Department

HCAL 1295/2025

[2025] HKCFI 3898

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1295 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 the Removal Order and a Deportation Order respectively dated 23 December 2021 and 25 August 2025. She has been held in immigration detention since 5 April 2025 pursuant to various sections of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the hearing before me, she has been detained for 147 days.

1.2This is my decision on the Applicant’s application for a writ of habeas corpus filed on 6 June 2025. At the hearing, the Applicant appeared in person with the benefit of an interpreter. Mr Rex Cheung, 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 and claims to have sneaked into Hong Kong by boat on 17 November 2020.

2.2On 18 November 2020, she was arrested by a police at a massage parlor for the suspected offences of “having landed in Hong Kong unlawfully remains in Hong Kong without the authority of the Director” and “taking employment while being a person who remains in Hong Kong without the authority of the Director after having landed in Hong Kong unlawfully”. She was only charged with the latter offence and was convicted on 1 February 2021 and sentenced to 15 months’ imprisonment.

2.3On 17 September 2021, the Applicant was discharged from prison and referred to the Immigration Department for investigation and thereafter released on recognizance on 1 October 2021.

2.4Since 9 November 2023, the Applicant failed to report recognizance. Eventually, she was arrested on 6 January 2025 for the offence of theft. On 2 April 2025, she was convicted of the offence of theft and sentenced to 3 months’ imprisonment.

2.5The Applicant was discharged from prison on 5 April 2025 upon which the present detention commenced.

2.6The Applicant’s family members are all in Vietnam and she has no family ties in Hong Kong. She has offered a friend who is a permanent resident in Hong Kong as guarantor for her release.

2.7She did not possess any valid travel document for reentry to her home country.

3.Non-refoulement claim (“NRC”) and related proceedings

3.1During her first imprisonment, on 8 March 2021, the Applicant raised a NRC. The Director rejected the NRC on 28 June 2021. Her subsequent appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was dismissed on 2 June 2022 (“TCAB Decision”).

3.2On 29 July 2022, the Applicant applied for leave to apply for judicial review against the TCAB Decision (HCAL 689/2022), which application remained extant as at the commencement of the present detention. Requests were made by the Department of Justice to accord priority to HCAL 689/2022 and a hearing was fixed to take place on 29 July 2025. Unfortunately, the hearing had to be adjourned twice due to inclement weather. As things presently stand, the hearing has been refixed to 9 September 2025.

4.The present detention and its reviews

4.1The present detention is or has been pursuant to the following sections of the Ordinance:

(1)  From 5 April to 10 August 2025, pursuant to section 32(3A) pending removal under the Removal Order;

(2)  From 11 to 24 August 2025, pursuant to section 29(1) for inquiry as to whether the Applicant ought to be deported;

(3)  From 25 August 2025, pursuant to section 32(3) pending removal under the Deportation Order.

4.2Although the Applicant had expressed her unwillingness to return to her home country, she did render her cooperation in completing the reentry formalities. On 25 July 2025, a replacement travel document was issued to the Applicant by the Vietnamese authorities.

4.3In the latest review of the Applicant’s detention conducted on 25 August 2025, her release was considered to be unwarranted for the following broad reasons:

(1)  The Applicant’s removal was going to be possible within a reasonable time as it was reasonable to believe that HCAL 689/2022 could be determined within a reasonable time;

(2)  There was a risk that the Applicant might abscond and/or (re)offend;

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

(4)  The above factors outweigh the fact that she has offered a guarantor for a release;

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

5.The Applicant’s submissions

5.1In her written materials, the Applicant puts forward the following grounds:

(1)  She is detained pending determination of her NRC, not pending removal;

(2)  Even were HCAL 689/2022 determined against her, she has the right to appeal and to make a subsequent claim if there has been a significant change of circumstances;

(3)  She does not have a record of offence related to violence and promises not to (re)offend;

(4)  She offers a friend as a guarantor for her release and undertakes to reside with her friend at the address given and undertakes to comply with reporting conditions;

(5)  The present detention has become unlawful;

(6)  No active steps have been taken to effect her removal;

(7)  She is suffering from emotional and psychological trauma from being unlawfully detained.

5.2At the hearing, the Applicant confirmed that the above was an accurate summary of the grounds of her application. She supplemented that she cannot at present return to her home country due to safety issues and asked to be released.

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 147 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. The foregoing is amply demonstrated by the matters adumbrated above, including the attempts to expedite of the resolution of HCAL 689/2022, which until resolved represents a legal impediment (pursuant to the Updated Removal Policy) to the Applicant’s removal and the issuance of a replacement document. The adjournments of the court hearings due to inclement weather was a factor outside the control of the Director/Secretary and I accept the assessment that it is not reasonable to expect that HCAL 689/2022 can be resolved by mid October 2025.

7.4Unlike many other cases which have come before the court, despite her reluctance to return to her home country, the Applicant in the present case did to an extent cooperate in completing the reentry formalities, such that the replacement travel document was issued on 25 July 2025, before the resolution of HCAL 689/2022.

7.5In the present case, it seems to me that the weighty considerations are the Applicant’s criminal records and the risk of absconding.

7.6In relation to the former, in the light of the nature of the Applicant’s criminal records and the length of imprisonment for the theft conviction, I am prepared to proceed on the basis that she does not pose a serious threat or security risk to the community. However, in the light of her multiple transgressions, the risk of (re)offending remains, which risk if materializes, would inevitably prevent her removal from Hong Kong as a result of consequential investigation and court proceedings.

7.7In relation to the latter, I accept Mr Cheung’s submission there is a real risk of the Applicant absconding given her professed reluctance to return to her home country and her previous absconding record (for an extended period of time until she was arrested). I do not regard the offer of guarantors and the Applicant's own promise not to abscond have the effect of outweighing the risk of absconding. The risk of absconding, if materializes, would defeat the purpose for which the power of detention was conferred.

7.8In relation to the Applicant's claimed physical and mental stress, there is no evidence suggesting that the Applicant cannot receive proper medical treatment if needed whilst being detained.

7.9As regards the Applicant's fear for her own safety if repatriated, as has been stated and repeated in many previous decisions, an application for a writ of habeas corpus is not an opportunity for the Applicant to continue to assert the concerns underpinning her NRC and the court in her habeas corpus application will not look at the merits of any such claim.

7.10Overall, weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

8.Conclusion

8.1By reason of the above matters, I am satisfied that the Applicant's detention, and likely foreseeable future period of detention (at least until the resolution of HCAL 689/2022), has been and will remain lawful. I have no doubt the present detention will be kept under review, depending on the outcome of HCAL 689/2022.

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

The Applicant, acting in person

Mr Rex Cheung, Senior Government Counsel, of Department of Justice, for the Respondent