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HCAL 2304/2018
[2021] HKCFI 3542
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 2304 OF 2018
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Before: Deputy High Court Judge P. Li in Chambers
Date of Decision: 30 November 2021
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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 on 28/1/2008. He was arrested by the police on 1/2/2008. He lodged the torture claim in this case on 11/2/2008.[2]
2. He was in fear that he might be killed by Rasheed and his family. They wanted to take revenge on him because of a murder which occurred in 1992. In that incident, Rasheed’s brother was killed. One of the suspects was the applicant’s brother Pervaiz who was acquitted after trial. Since then, Rasheed and his family harassed him. They slapped him on several occasions. They fired shots in the air to scare him. He had to move to a friend’s place in another district in Punjab. He was safe there from 1994 to 2000. He then worked in Iran from 2000 to 2007. Shortly after he returned to Pakistan, he learned that Rasheed was still looking for him. He decided to leave Pakistan. He went to China and sneaked into Hong Kong on 3/11/2017.
3. His non-refoulement claim was rejected by the Director on 5/4/2016[3] and 15/5/2017[4]. The appeal was dismissed by the TCAB on 31/7/2017.
4. The adjudicator found that the applicant was inconsistent in his oral evidence and his NCF. He exaggerated his risk and danger. It was unreasonable that his mother and sisters were never harassed. The dispute had nothing to do with any political party.[5] The applicant had worked in Wazir Abad for 5 years and Iran for 7 years. During those periods, he did not encounter Rasheed and his men. When he returned to Pakistan in 2007, he had not encountered them either. His claim of danger was unconvincing. He was not reliable. There was State protection and reasonable relocation options. The adjudicator dismissed his appeal.
5. On 23/10/2018, the applicant applied leave for judicial review of the decision of the TCAB. Deputy Judge CP Pang dealt with his leave application on paper. The Judge pointed out that the applicant was out of time for about 8 months in his leave application. There was no explanation for the delay, nor was there any request for extension of time.
6. The judge agreed with the adjudicator that the applicant was not a credible witness. The adjudicator rightly rejected the factual basis of his claim. The Judge agreed that the evidence could not establish a real risk of harm. Given that the applicant was not involved in the murder, there was no reason that Rasheed would still wish to pursue after so many years. There was no error of law or procedures. The TCAB decision was rational. The Judge found no good reason to extend time for the leave application. He also refused leave for the intended judicial review on 26/1/2021. [6]
7. The applicant filed a summons on 17/3/2021 for extension of time to appeal against the decision of Deputy Judge Pang. He was out of time for 5 weeks. In his affirmation, the applicant indicated that he missed the time for appeal. He only received the judgment of Deputy Judge Pang on 16/3/2021.
8. 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.[7]
9. The applicant is out of time for about 5 weeks. It is substantial delay. He asserted that he received the judgment late but there was no detail as to the circumstances.
10. According to the court record, the decision of Deputy Judge Pang was sent to the most updated address as of 8/1/2021 at Yu Chau Street. There was no return of mail in the court file. The applicant reported this address to the Immigration Department. This was a different address from the one in the Form 86 but the same in the Form 8 dated 22/12/2015.
11. The applicant gave a different address at Nanking Street in his summons dated 17/3/2021. This was the same address in his Form 86. It is obvious that the applicant has two addresses. He had not informed this court or the Director about this situation. He must bear the consequence of any problem in the mail. In my view, his explanation is unsatisfactory. In addition, I also consider the prospect of the intended judicial review.
12. As set out in paragraph 4 above, the adjudicator rejected the factual basis of his claim. There was serious inconsistencies and exaggeration. I agree with the decision of the TCAB. The applicant failed to establish that there was real risk of harm. I also agree with the decision of Deputy Judge Pang. The applicant was not involved in the murder, there was no reason for Rasheed to take revenge on him after so many years. In my judgment, there is no merit in the intended judicial review.
13. Having considered all relevant factors, I refuse the application for extension of time to appeal.
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(P. Li) |
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Deputy High Court Judge |
The applicant was unrepresented.
[1] He was born on 15/5/1979.
[2] He was sentenced to imprisonment for 3 months on 2/10/2015 for trafficking in a dangerous drug.
[3] For BOR 3, Torture risk and persecution risk.
[4] For BOR 2.
[5] The applicant suspected the PML(N)—Pakistan Muslim League (N).
[6] The Judge applied the principle in AW v Director of Immigration [2016] 2 HKC 393.
[7] Jagg Singh [2020] HKCA 844, §10—12.
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