MD ALI ASGHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 508/2026

[2026] HKCFI 4116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 508 OF 2026

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DECISION

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1.  Introduction

1.1   This Applicant is subject to a Removal Order made on 10 September 2024. He has been held in immigration detention since 4 September 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 686 days.

1.2   This is my decision on the Applicant’s application for a writ of habeas corpus made on 3 March 2026.  At the hearing, the Applicant appeared in person, with the benefit of an interpreter.  Mr Frenki Fung, Acting Senior Government Counsel, appeared for the Director of Immigration (“Director”)  and the Secretary for Security (“Secretary”).

2.  Background

2.1   The Applicant is a Bangladeshi national who entered Hong Kong on 22 November 2003 on the strength of his Bangladeshi passport which was valid until 16 July 2025.  He was permitted to remain as a visitor until 24 November 2023. He has overstayed since 25 November 2003 and was only arrested by the police around 8 years later on 2 October 2011.

2.2   On 12 November 2014, the Applicant married a Hong Kong permanent resident in Hong Kong.  Since 22 December 2014, the Applicant has made five dependent visa applications with his wife being the sponsor, all of which were refused.

2.3   It transpired from the supporting documents submitted for the dependent visa applications that the Applicant in fact had a (more recent)  passport which was valid until 31 March 2026.  However, the Applicant claimed that the passport was kept by his wife and refused to hand it over to the Immigration Department.

2.4   Whilst on recognizance, on 27 June 2024, the Applicant was sentenced to 104 days’ imprisonment for being convicted of one count of “Breach of condition of stay”.  The present detention commenced following his release from prison.

2.5   It appears that the Applicant does not have a history of failing to comply with his recognizance conditions.

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

3.1   Suffice it to state that the Applicant’s NRC, and his challenges in court against the rejection of his NRC, all failed before the commencement for the present detention, culminated in the Court of Final Appeal’s dismissal of his application for leave to appeal on 2 June 2022.

3.2   Thereafter, the Applicant on 6 July 2023 made a request to make a subsequent claim, which request was refused by the Director on 7 December 2023.

4.  The present detention and its reviews

4.1   The present detention was and is for divers periods pursuant to section 32(2A)(c)  (from 4 to 10 September 2024)  and 32(3A)  (since 10 September 2024)  of the Ordinance.

4.2   Throughout the present detention, the Applicant has persistently indicated his unwillingness to return to his home country.

4.3   As regards the steps taken to effect his removal, as noted above, the Applicant had, prior to the expiry of his most recent passport in March 2026, refused to hand it over to the Immigration Department, despite requested to do so in October 2024.  His refusal to do so led the Immigration Department to seek assistance from the Consulate General of the People’s Republic of Bangladesh in Hong Kong (“CG”)  to issue a replacement travel document.  In January 2025, the Immigration Department was informed that, as the Applicant had a valid passport, a replacement travel document could not be issued, which position was repeated in June 2025.  Thereafter, the Immigration Department continued to liaise with CG on possible alternative means to issue a replacement travel document despite the Applicant’s refusal to cooperate. Eventually, an interview was scheduled for 4 March 2026 which the Applicant refused to attend.

4.4   Following the expiry of the Applicant’s passport on 31 March 2026, a further interview was arranged with CG on 15 June 2026 which the Applicant again refused to attend.  Until now, the issuance of a replacement travel document has been prevented due to the Applicant’s refusal to cooperate in completing the reentry formalities.

4.5   In the latest review of the Applicant’s detention conducted on 13 July 2026, the Applicant’s continued detention was considered to be justified for the following broad reasons:

(1)  The Applicant’s removal was going to be possible within a reasonable time should he cooperate;

(2)  Save the current application, there were no further legal impediments to the Applicant’s removal;

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

(4)  The Applicant had directly or indirectly prevented his removal;

(5)  There was a real risk of the Applicant absconding given his unwillingness to return to his home country;

(6)  The Applicant’s local connections and his medical conditions had been taken into account and they were not sufficient to outweigh the factors against his release;

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

5.  The Applicant’s submissions

5.1   The Applicant’s written materials are extremely lengthy (around 100 pages), but the bulk contains general submissions on legal principles.  The relevant factual matters may be summarized as follows:

(1)  He relies on his family connection in Hong Kong, pointing out that he has no plans to leave his wife;

(2)  His health condition has worsened since the commencement of the present detention and he refers to the lack of proper diet and the “mental torture” he suffers as a result of his detention;

(3)  He complains that the present detention is arbitrary and the reviews of his detention were conducted without his input;

(4)  The length of his detention has become unreasonable;

(5)  He does not pose a threat or security risk to the community;

(6)  He fears for his own safety if he returns to his home country;

(7)  He has no history of abscondence;

(8)  His wife and 3 other Hong Kong residents are willing to act as his guarantors.

5.2   At the hearing, the Applicant’s wife was in attendance to support the Applicant.  The Applicant confirmed that accuracy of the above summary.   He supplemented by handing up a letter in which he largely repeats the matters already set out in the above summary, with the following emphases: (1)  his medical conditions have been disregarded, (2)  his family connection has been ignored, (3)  his lack of abscondence record and his relatively minir conviction history have not been given due weight. 

5.3   The new matters set out in the letter are these.  First, he says that he had given the wife’s contact number to the Immigration Department to collect his then valid passport.  Second, he was not arrested in October 2011. Thirdly, he has recently suggested to his case officer to release him for a short time so he can discuss with his wife and/or make arrangements to be reunited elsewhere.

6.  The applicable principles

6.1   The 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.

6.2   I 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.

6.3   Under 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.

6.4   The 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.”

6.5   In particular, on the issue of a detainee's refusal to cooperate in completing reentry formalities, Johnson Benjamin §37 observed as follows:

“… 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…”

7.  Analysis

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

7.2   The 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 686 days, against which the various other factors must be weighed and balanced.

7.3   Whilst the period of detention Is objectively lengthy, for the reasons set out below, I agree with the Respondents that the extended period of detention is entirely self-induced by the Applicant’s own actions or inaction.

7.4   I 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 has acted with diligence and expedition to effect the Applicant's removal.  HS4 is satisfied.  As at the commencement of the present detention, the only impediment to the Applicant’s removal was a practical one, which has remained throughout due to (1)  his refusal to handover his (then valid)  passport and (2)  following the expiry of his passport on 31 March 2026, he refusal to cooperate in completing the reentry formalities.

7.5   As has been observed at Johnson Benjamin §37, even the existence of an ongoing non-refoulement does not excuse a detainee from rendering cooperation in completing the reentry formalities.  That observation is in my view a fortiori here given that, in the present case, the Applicant’s NRC and related proceedings had all been disposed of prior to the commencement of the present detention.

7.6   In any event, I do not accept the Applicant’s following proffered reason for his failure to cooperate as reasonable.

7.7   First, as regards the Applicant’s fear for his 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 his NRC and the court in his habeas corpus application will not look at the merits of any such claim.

7.8   Secondly, as regards the Applicant’s marriage and his reluctance to part with his wife, I am afraid I cannot attach much weight to this factor.  At the time when the Applicant married his wife in 2014, he must have known that there was no guarantee that he could remain in Hong Kong.  In that sense, the Applicant must be taken to have entered into the relationship with eyes wide open to the risk of removal.  As has been observed at Harjang Singh §156:

“However, Ms Cheung is on stronger ground when she identifies that, when reviewing reasonableness in this case, the Judge did consider the Applicant’s family circumstances but decided to give it little weight, and it cannot be said that that is wrong in law. Ms Cheung is also correct to point out that the family circumstances might be considered to have little impact in this case, as the Applicant is being held pending deportation, namely to be removed from his family in Hong Kong anyway, so that the factor might be of little significance when weighed against matters overall.”

7.9   During the hearing, it seems to be quite plain that the Applicant and his wife have a close relationship.  However, I am not persuaded that the Applicant should be released to enable him to discuss the reunification plans with his wife, gave the overall circumstances.  As accepted by the Applicant, his wife visits him regularly and it is only his own view that it is inconvenient to discuss any reunification plans whilst he is in detention.  Indeed, he has never attempted to do so.  The fact remains that the Applicant has continued to refuse to cooperate in completing the reentry formalities and I do not see any reason that any plans for reunification elsewhere (either in his home country or, as suggested by the Applicant at the hearing, Indonesia)  is dependent on the Applicant being released in Hong Kong.  In any event, as submitted by the Respondents, obtaining a replacement travel document in fact has the effect of progressing any plans for reunification elsewhere and the Applicant’s action in creating a situation whereby the practical impediment remains in place is in my view unreasonable.

7.10   Generally speaking, a replacement travel document can be issued in around 2 weeks upon the completion of the reentry formalities. 

7.11   I am prepared to proceed on the basis that, given the nature and frequency of the Applicant’s conviction record, he does not pose a threat or security risk to the community.  However, the nature and circumstances of the conviction, namely overstaying for 8 years until arrested by the police, is relevant to the assessment of absconding risk. Although the Applicant says that he was not arrested, he accepts that he was in fact stopped by the police in October 2011 and he confessed to the police that he had overstayed.  He seems to be under the (incorrect)  impression that an arrest necessarily entails being forcibly detained, when even under the circumstances described by the Applicant an arrest could still have taken place. I accept the Respondents’ submissions that considerable weight should be given to the Respondents’ assessment on the risk of absconding, despite the Applicant’s local connections.  As submitted by the Respondents, the Applicant’s local connections must be balanced against his unwillingness to return to his home country and the fact that he had remained an overstayer for 8 years before being arrested by the police.  Such risk, if it materializes, would defeat the purpose, would defeat the purpose for which the power for detention is conferred.

7.12   In relation to the Applicant’s claimed health and psychological conditions, there is no evidence to suggest that the Applicant cannot receive proper medical treatment if needed whist being detained.  On the Applicant’s own admission at the hearing, he has received medical care for external hospitals.  In any event, the Applicant's medical condition does not have the effect of altering her continued and lawful detention to become unlawful: Ngo Quang Duy v Director of Immigration [2022] HKCFI 177 §30.

7.13   As regards the Applicant’s complaint that the present detention is arbitrary, I am unable to accept his submissions.  On the present materials, reviews of the present detention were conducted on 10 December 2024, 10 March 2025, 11 July 2025, 3 November 2025, 13 March 2026 and 13 July 2026, each pointing to at least the factor that the detention was being prolonged by the Applicant’s own unreasonable actions in maintain the practical impediment.

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

8.  Conclusion

8.1   By 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.

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