Mohammed Afsar Ali v. Hong Kong Sar Government

HCAL 1103/2025

[2025] HKCFI 3840

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1103 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 dated 31 March 2014. He has been held in immigration detention since 7 October 2024 pursuant to section 32(3A) of the Immigration Ordinance Cap 115 (“Ordinance”). As at the date of the hearing before me, he has been detained for 323 days.

1.2This is my decision on the Applicant’s application for a writ of habeas corpus filed on 12 May 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”).

2.Legal aid stay

2.1The Applicant has recently applied for legal aid and a Memorandum of Notification of an Application for Legal Aid was issued on 22 July 2025. At the hearing, I indicated that I would lift the legal aid stay. These are my reasons for doing so.

2.2In Ousmane Issa Boubacar v Director of Immigration [2023] HKCFI 2602, Coleman J dealt with the issue of whether the mandatory legal aid stay of 42 days ought to be lifted in a very similar context, namely a belated application for legal aid by an applicant of a writ of habeas corpus. The learned Judge observed as follows:

“[7] After considering matters, I refused the adjournment – and, on the assumption that there has been a legal aid application relating to these proceedings which would have triggered an automatic 42-day stay of these proceedings – I lifted the legal aid stay. I did so for the following reasons:

(1) Applications for a writ of habeas corpus are to be heard as soon as is practicable.

(2) But, if a writ of habeas corpus has been issued in respect of a detained person, the person having custody of the detained person must not, until the writ has been discharged or the proceedings are concluded allow the detained person to be removed from Hong Kong: see section 22A(11).

(3) Hence, the practical effect of the making of an application for writ of habeas corpus is to create a legal impediment to removal of the detained person from Hong Kong.

(4) There is an inherent inconsistency between: (1) making an application which seeks immediate release from detention, and which should be heard as soon as possible; and (2) making another application which by its nature would prevent or delay release from detention, whether it is (a) an application for an adjournment, perhaps to seek legal advice, or (b) an application for legal aid which has the effect of triggering an automatic stay of 42 days.

(5) There is also inconsistency or tension between an application which seeks immediate release and a collateral application which frustrates an imminent release in fact already arranged.

…

(7) Hence, if the Applicant is correct, and his detention has become and/or will become unlawful, his own action in applying for legal aid – thereby triggering the automatic stay – and seeking an adjournment might cause him real unfairness and prejudice.

(8) The counter risk of prejudice is in depriving the Applicant of the potential opportunity to seek and obtain legal representation is significantly less likely to give rise to any real prejudice.

(9) This is because of the approach to habeas corpus applications, where the central question to be determined is whether there is, and continues to be, lawful authority for the detention, where an originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

(10) It is not incumbent on the applicant to demonstrate unlawfulness.

(11) The burden of showing that detention is lawful lies upon the respondent, but the Court is the primary decision maker as to the reasonableness of the detainee's continued detention.

(12) Either continuing detention is reasonable and so lawful, or it is not.

(13) Further, on a habeas corpus application, the Court is not dealing with a non-refoulement claim (“NRC”), and is not deciding whether the applicant should or should not be removed from Hong Kong.

(14) Instead, the Court is deciding whether the applicant – typically subject to a removal order and/or a deportation order – has been lawfully detained, and can continue to be lawfully detained, pending his removal or deportation from Hong Kong.”

2.3I agree entirely the reasons adumbrated by Coleman J. In any event, at the hearing, the Applicant confirmed that he was desirous for the hearing today to proceed.

2.4For the above reasons, I decided to uplift the legal aid stay and the hearing proceeded.

3.Background

3.1The Applicant is an Indian national. He arrived in Hong Kong on 23 November 2013 and was permitted to remain as a visitor until 7 December 2013. He did not depart as required and has overstayed since 8 December 2013.

3.2The Applicant was released on recognizance on 23 April 2014. On 11 April 2023, he failed to report recognizance and was only arrested by the police on 7 October 2024 as a wanted person. He was referred to the Immigration Department upon which the present detention commenced.

3.3The Applicant’s passport expired on 18 July 2021.

3.4The Applicant claims that he is married to an Indonesian female called Muntianah (“Claimed Wife”) who is herself currently on recognizance.

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

4.1The Applicant’s NRC was rejected by the Director on the grounds of torture, BOR3 and persecution risks on 31 July 2014 and his subsequent appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB”) was dismissed on 3 March 2015.

4.2The Applicant’s NRC was rejected by the Director on the ground of BOR2 on 4 January 2017. His subsequent out of time appeal/petition to the TCAB was refused by the TCAB on 30 August 2018 (“TCAB 2^nd Decision”).

4.3Thereafter, the Applicant sought to apply for leave to apply for judicial review against the TCAB 2^nd Decision (HCAL 1809/2018), which application was dismissed by the Court of First Instance on 9 July 2020 (“CFI Decision”). His subsequent challenges (or attempts to mount a challenge out of time) against the CFI Decision to the Court of Appeal and Court of Final Appeal were all unsuccessful, the last of the foregoing steps being the dismissal of FAMV 448/2022 by the Appeal Committee of the Court of Final Appeal on 16 January 2024.

4.4Thereafter, during the present detention on 6 January 2025, the Applicant requested to make a Subsequent Claim (“SC Request”). On 12 March 2025, the SC Request was refused by the Director (“SC Refusal”)

4.5On 21 July 2025, the Applicant filed an out-of-time application for leave to apply for judicial review against the SC Refusal (HCAL 1640/2025). I was informed that the hearing of HCAL 1640/2025 has been fixed to take place on 27 August 2025. As in the present case, the Applicant has applied for legal aid in HCAL 1640/2025.

5.The present detention and its reviews

5.1As the Applicant’s passport had expired in July 2021, even prior to the commencement of the present detention, efforts were made to liaise with the Consulate General of the Republic of India (“CG”) for the issuance of a replacement travel document to the Applicant.

5.2Throughout the present detention, the Applicant has persistently maintained his reluctance to return to his home country and refused to cooperate in completing the reentry formalities.

5.3Notwithstanding the Applicant's refusal to cooperate, the Immigration Department had attempted to liaise with the CG on possible alternative means for issuing a replacement travel document.

5.4In the latest review of the Applicant's detention conducted on 17 July 2025, his 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;

(2)  The Applicant had directly or indirectly prevented or delayed his removal due to his resistant and uncooperative attitude;

(3)  An emergency travel document would generally be issued in around one month’s time upon the completion of the reentry formalities;

(4)  The Applicant had previously absconded for around 18 months, and as a result, that was a substantial and real risk of absconding were he released on recognizance;

(5)  The factor of his Claimed Wife had been taken into consideration, but this did not outweigh factors against release of the Applicant.

6.The Applicant’s submissions

6.1In his written submissions, the Applicant puts forward the following grounds:

(1)  The SC Request, or the challenge against the SC Refusal, has not been finally resolved;

(2)  Whilst detained, he is unable to collate documents in support of the SC Refusal and he wishes to be released for six months so that he may properly prepare the necessary documentation for HCAL 1640/2025;

(3)  He has never been convicted of an offence in Hong Kong;

(4)  He offers a friend and his cousin who are permanent residents in Hong Kong as guarantors for his release;

(5)  He promises to be on good behaviour and to abide by any reporting conditions if released;

(6)  He is suffering from mental stress and physical frailty from being detained.

6.2At the hearing, the Applicant confirmed that the above was an accurate summary of the grounds of his application. He handed up court a number of documents which, upon my perusal of them and inquires made to the Applicant, did not materially add to the above summary. He supplemented that he feared for his own safety if returned to his home country and wished to be released so he could sort out the problems there. Although he complained that his requests to consult at an outside hospital was not heeded upon, he confirmed that he received regular medication and checkup by the relevant medical personnel at the detention centre.

7.The applicable principles

7.1The 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.

7.2I remind myself that the burden is on the Respondent to an application for a writ of habeas corpus to justify the lawfulness of the Applicant's detention.

7.3Under 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.

7.4The 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."

8.Analysis

8.1During the present detention, the Applicant is and has been detained pursuant to section 32(3A) of the Ordinance. It follows therefore that there is and has been prima facie lawful authority to detain the Applicant.

8.2The 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 323 days, against which the various other factors must be weighed and balanced.

8.3I accept that, throughout the period of detention, the intention of the Director 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 has 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 efforts made to liaise with the CG to issue a replacement travel document to the Applicant, despite his refusal to cooperate in completing the reentry formalities.

8.4As at the commencement of the present detention, there was no legal impediment to the Applicant’s removal. The SC Request does not create a legal impediment since, under section 37ZO of the Ordinance, unless and until a request to make a subsequent claim is granted by an immigration officer and a subsequent claim is made in accordance with section 37X, there is no “torture claim” which would prevent the removal of the Applicant from Hong Kong under section 37Z. However, under the Updated Removal Policy, the policy is to defer removal to await the resolution by the Court of First Instance in respect of an application for leave to apply for judicial review against a refusal of a request to make a subsequent claim. In the present case, that application was belatedly made on 21 July 2025.

8.5Even during the resolution of the SC Request and HCAL 1640/2025, if it is thought by the Applicant that such extant matters would justify his refusal to in the meantime render cooperation in completing the reentry formalities, such a position is misconceived. As observed in Johnson Benjamin:

“Second and in any event, with the greatest respect, we have reservation as to whether the observations in R(Lumba) are necessarily correct. In our view, even if there is an ongoing non-refoulement claim, there is no reason in principle why it is not reasonable to expect an applicant to cooperate with the relevant authorities to obtain the necessary travel document to facilitate his removal once the non-refoulement claim is disposed of. In other words, we do not see in principle why such uncooperative behaviour on the part of an applicant should only be limited to the consideration of the risks of absconding but not also to the wider question of whether any additional period of detention resulting from such behaviour shall be considered as reasonable or not".

8.6I accept Mr Tong’s submission that there is a real risk of the Applicant absconding given his professed reluctance to return to his home country and his previous absconding record. 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.

8.7In 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. In any event, the Applicant's medical condition, whether physical or mental, does not have the effect of altering his continued and lawful detention to become unlawful: Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 §30.

8.8As regards the Applicant's fear for his own safety if repatriated by reference to the fact that he has made the SC Request and his submissions made in court today, 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 assert the concerns underpinning his NRC and the court in his habeas corpus application will not look at the merits of any such claim.

8.9As regards the Applicant’s assertion that he needs to be released to collate information to support HCAL 1640/2025, I note that the SC Refusal was made on the basis that no grounds was put forth in the SC Request. I decline to speculate the outcome of the HCAL 1640/2025 which will be heard in 2 days’ time, and in the event that HCAL 1640/2025 were successful and a legal impediment is subsequently created, there is no doubt that the Applicant’s detention will be reviewed accordingly.

8.10Overall weighing the period of detention against all the other factors, I am satisfied that HS2 and HS3 are met.

9.Conclusion

9.1By reason of the above matters, I am satisfied that the Applicant's detention, and likely foreseeable future period of detention has been and will remain lawful.

9.2I therefore dismiss the present application with no order as to costs.

The Applicant, acting in person

Mr Andrew TONG, Senior Government Counsel (Ag), of Department of Justice, for the Respondent