RE AHMAD ASHFAQ

HCAL 2920/2018

[2022] HKCFI 35

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2920 OF 2018

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D E C I S I O N

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1.  The applicant is from Pakistan[1]. He claimed to have sneaked into Hong Kong and was arrested by the police on 7/3/2017 [2]. He lodged the torture claim in this case on the same day.

2.  He feared that the Sunni villagers would harm or kill him if he returned to Pakistan. He was an active Shia and would try to build an Imam Bargah.

3.  In 2003, he heard that some people wanted to kill him as he put up a Shia flag at his house and they would not tolerate the annual ceremony he organized. He fled to Hong Kong and overstayed here from 2003-2007. He returned to Pakistan in 2007 as he heard that it was safe to return to his village.

4.  In 2008, he intended to build an Imam Bargah [3] next to his house for Shia Muslims to pray in the village annually [4]. However, Sunni villagers objected. The plan stopped because of financial problem. He wanted his own mosque despite there were 2 nearby.

5.  In 2012, he resumed the plan. In June and September 2012, someone shot at him. He was not injured. The police did not take action. He stayed with his friends at Lahore for about 9 months. In September 2013, he left Pakistan for Guangzhou. He stayed there for 2 years before moving to Shenzhen. He sneaked into Hong Kong in November 2016.

6.  His non-refoulement claim was rejected by the Director on 31/10/2017. The appeal was dismissed by the TCAB on 13/12/2018.

7.  The adjudicator found that the applicant was not credible. He claimed there was propaganda to kill him in 2003. This was never mentioned in the NCF and interview with the Director. He claimed there was no problem in 2007 for his return to Pakistan but in 2008 the villagers objected his plan again. In his absence, the Shia Muslims could commemorate on their own elsewhere. He did not file any protection claim in 2003-2007 while in Hong Kong. He delayed for 4 months until March 2017 before filing his claim. The adjudicator dismissed his appeal concluding that he had not made out his case.

8.  On 19/12/2018, the applicant applied leave for judicial review of the decision of the TCAB. He did not point out any specific error in the TCAB decision.

9.  This court agreed with the adjudicator that the applicant was not a credible witness. There was no error of law or procedures. The TCAB decision was rational. This court refused leave for judicial review on 25/3/2021.

10.  The applicant filed a summons on 12/7/2021 for extension of time to appeal against the decision of this court. He was out of time for more than 3 months. In his affirmation, the applicant indicated that he did not receive the decision of this court in time.

11.  In considering whether to extend time for appeal, this court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the merits of the intended judicial review; (4) prejudice to the respondent.[5]

12.  The applicant is out of time for over 3 months. It is substantial delay. He asserted that he received the judgment late but there was no detail as to the circumstances. This could not explain why there was such a substantial delay. The decision was sent to his current address as in the summons for extension of time. There was no return of mail.

13.  In my view, his explanation is unsatisfactory. In addition, I also consider the prospect of the intended judicial review.

14.  As set out in paragraph 7 above, the adjudicator rejected the factual basis of his claim. The adjudicator found him not credible. I agree with the decision of the TCAB. The applicant failed to establish that there was real risk of harm. His insistence on building the Imam Bargah is unconvincing. In my judgment, there is no merit in the intended judicial review.

15.  Having considered all relevant factors, I refuse the application for extension of time to appeal.