MOHAMMED AFSAR ALI v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 2369/2025

[2026] HKCFI 830

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2369 OF 2025

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DECISION

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1.   Introduction

1.1  This is the Applicant’s second application for a writ of habeas corpus made on 22 October 2025 (“Present Application”), less than two months after I had dismissed his first application by a decision dated 25 August 2025 (“Previous Decision”)[1]. As at the date of the hearing before me, the period of the Applicant’s detention has increased from 323 (as at the Previous Decision)  to 487 days.

1.2  This is my decision on the Present Application.  At the hearing, the Applicant appeared in person, with the benefit of an interpreter.  Mr Ray Mok, Government Counsel, appeared for the Director of Immigration.

2.  Relevant background

2.1  I do not propose to rehearse the background and the history of the Applicant’s non-refoulement claim (“NRC”)  and related proceedings already set out at sections 3 and 4 of the Previous Decision.

2.2  By way of update, as noted at Previous Decision [4.4], [4.5] and [8.9], there was then an extant application by the Applicant to apply for leave to apply for judicial review against the SC Refusal (HCAL 1640/2025).

2.3  HCAL 1640/2025 was heard on 27 August 2025.  By a decision dated 16 September 2025[2], DHCJ K W Lung dismissed HCAL 1640/2025.  The learned Judge was of the view that HCAL 1640/2025 was the Applicant’s attempt to abuse the court’s process, and was satisfied that, if not restrained, it was likely that the Applicant would procced with HCAL 1640/2025 or other proceedings for the sole purpose of remaining in Hong Kong only.  A restricted proceedings order was made against the Applicant (“RPO”)  in, inter alia, the following terms:

“The Applicant is prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to any non-refoulement claim of the Applicant in the High Court and any appeal, including this Order, without the leave of the Court of First Instance.”

3.  The Applicant’s detention (since the Previous Decision)

3.1  As noted at Previous Decision [5.2] and [5.3], the Applicant had persistently maintained his reluctance to return to his home country and refused to cooperate in completing the reentry formalities.  Since the handing down of the Previous Decision, there were number of occasions where the Applicant did indicate a change of stance, but ultimately on each of those occasions, the change of stance was but a lip-service as he quickly changed his mind after:

(1)  At an interview conducted on 23 September 2025, the Applicant expressed his willingness to return to India and cooperate with the reentry formalities but he changed his mind on 3 October 2025;

(2)  On 2 December 2025, the Applicant again expressed willingness to return to India and cooperate with reentry formalities and progress was made in the sense that the Applicant’s application form, recent photos and consent letter for reentry seeking were secured on 11 December 2025.   However, he changed his mind on 17 December 2025.

(3)  At interviews conducted on 30 December 2025 and 2 January 2026, the Applicant expressed willingness to attend an interview with the CG but then refused to attend the interview scheduled on 9 January 2026.  On 14 January 2026, the Applicant was arranged to be interviewed by the CG at the detention centre at which he refused to comply with reentry formalities.

3.2  The upshot of the above is that it has remained necessary for the Immigration Department to liaise, and the Immigration Department has liaised, with the CG on possible alternative means for issuing a replacement travel document but so far without any success.

3.3  In the latest review of the Applicant’s detention conducted on 22 January 2026, his release was considered to be unwarranted for broadly the same reasons as those set out at Previous Decision [5.4].

4.  The Applicant’s submissions

4.1  In his written submissions, the Applicant puts forward the following grounds, many of which were already relied upon in his first application:

(1)  HCAL 1640/2025 is still running and in any event, there are appeal avenues even were HCAL 1640/2025 determined against him;

(2)  He fears for his own safety if he returns to his home country and he promises that he will return when his problems at home are resolved;

(3)  He is truly remorseful for his previous failure to report recognizance;

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

(5)  His removal cannot be effected within a reasonable time;

(6)  He offers a friend and his cousin who are permanent residents in Hong Kong as guarantors for his release and is himself willing to offer HK$4,000 as bail money;

(7)  He suffers from emotional and psychological trauma for being unlawfully detained;

(8)  He promises to comply with recognizance conditions imposed;

(9)  The present detention has become unlawful.

4.2  At the hearing, the Applicant confirmed that the above correctly summarize the grounds set out in his written materials.  At the hearing, he supplemented as follows: (1)  on 18 December 2025, he made a further judicial review application but he has not been updated by the welfare officer as to whether the application has even been submitted, (2)  he in fact wanted to appeal the Previous Decision but was told that he could not and he was therefore driven to make the Present Application, (3)  he was not provided with the decision in HCAL 1640/2025 and he made the Present Application on the belief that HCAL 1640/2025 was still ongoing and (4)  he disagreed that he had failed to cooperate in completing the reentry formalities.

5.  The applicable principles

5.1  The relevant principles are set out at Previous Decision [7.1]-[7.4] and [8.5].  In the present context, I would add that as the Applicant’s detention has become lengthier, Harjang Singh v Secretary for Security [2002] 4 HKLRD 99 [164(14)-(20)] observe that the risks of absconding and/or reoffending have to be assessed in the light of the lengthier detention, since the lengthier the detention the greater the risk is necessary to justify it.

6.  Analysis

6.1  During 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.

6.2  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 487 days, against which the various other factors must be weighed and balanced.

6.3  I adopt the reasoning set out at Previous Decision [8.3]-[8.8] and [8.10].  In my view, the matters which have transpired during the additional period of detention have only fortified my conclusion that the entire period of the Applicant’s detention, and the likely foreseeable further period of detention has been and will remain lawful, for the following reasons:

(1)  As set out at [3.1] above, the Applicant has continued his unreasonable behaviour of refusing to cooperate in completing the reentry formalities: Previous Decision [8.5].  I do not accept the Applicant’s assertions made at the hearing that he had cooperated with the reentry formalities, as had he done so, there is no reason why a replacement travel document has still not been issued;

(2)  DHCJ K W Lung’s finding that HCAL 1640/2025 is entirely without merit such that the RPO was made in the light of his conclusion that the Applicant was abusing the court’s process for the sole purpose of remaining in Hong Kong;

(3)  In the light of the extant RPO, it is unjustified for the Applicant to rely on further ongoing legal proceedings/appeal to suggest that his removal cannot be effected within a reasonable time, which suggestion is itself erroneous due to by reason of the Updated Removal Policy: Previous Decision [8.4];

(4)  Indeed, at the hearing, the Applicant suggested that (a)  as he had (allegedly)  initiated a new set of judicial review proceedings on 18 December 2025, that would provide the reason for his release and (b)  he wanted to appeal the Previous Decision as HCAL 1640/2025 was at that time still ongoing and he should therefore have been released.   The foregoing positions taken by the Applicant are entirely consistent with the reasons for the making of the RPO, namely court proceedings are being initiated by the Applicant for the sole purpose of remaining in Hong Kong;

(5)  The Applicant’s conduct set out at [3.1] above has only reinforced my conclusion at Previous Decision [8.6], namely that there is a real risk of the Applicant absconding given his professed reluctance to return to his home country (and his assertions at the hearing that he is willing to return to India are not accepted).  I am further of the view that the extended period does not have the effect of diminishing the wright to be attached to the identified risk of absconding. 

7.  Disposition and costs

7.1  For the above reasons, I dismiss the Present Application.

7.2  On the issue of costs, as set out at Ali Nazaket v Director of Immigration & Ors [2024] HKCFI 1133 [39], where the court is satisfied that there is no basis for taking out an application for a writ of habeas corpus at all, it is a ground to justify an order for costs against the applicant.

7.3  In the present case, I accept Mr Mok’s submission that the Present Application is unmeritorious and wholly without basis.  The only obstacle to the Applicant’s removal (subject to the bringing of HCAL 1640/2025 which has been found to be entirely without merit)  is and has always been a practical impediment, namely the need to issue a replacement travel document to the Applicant.

7.4  As I have pointed out in the Previous Decision, even whilst HCAL 1640/2025 remained extant, it did not justify the Applicant’s refusal to cooperate in completing the reentry formalities.

7.5  The Present Application is brought after the foregoing was explained in the Previous Decision.  Regrettably, the Applicant (1)  has remained obdurate in refusing to take heed of the matters set out in the Previous Decision and (2)  mounted the Present Application very shortly after the Previous Decision against the background of his continued unreasonable behaviour.

7.6  I therefore order that the costs of the Present Application be paid by the Applicant to the Respondent forthwith, summarily assessed at HK$30,000.