RE RASOOL AKHTAR

HCAL 2848/2018

[2021] HKCFI 1780

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2848 OF 2018

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D E C I S I O N

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1.  The applicant is from Pakistan. He sneaked into Hong Kong by boat on 21/9/2013 illegally through China. He was arrested by the police on 28/9/2013. He filed the non-refoulement claim in this case on 30/9/2013.

2.  The Director rejected his claim on 29/6/2016 [1] and 22/6/2017 [2].  The TCAB refused his appeal on 29/11/2018. 

3.  On 12/12/2018, the applicant applied for leave for judicial review of the decisions of the TCAB and the Director.  He maintained that he had life threat in Pakistan.  He had married and would like to stay in Hong Kong.

4.  The applicant attended the hearing on 16/7/2020[3] before Deputy Judge Lung.  The applicant confirmed that the hearings before the TCAB and the Director were fair.  The Judge pointed out that the TCAB had rejected his evidence.  The Judge concluded that there was no error of law or procedures.  The decision of the TCAB was not irrational.  Leave for judicial review was refused on 5/8/2020.

5.  The applicant filed a summons on 28/10/2020 for extension of time to appeal against the decision of Deputy Judge Lung.  He was 10 weeks out of time for appeal.

6.  In his affirmation in support of the application for extension of time, the applicant alleged that he had not received the decision from Deputy Judge Lung.  He had no legal representation.

7.  In considering whether to extend time for appeal against the refusal of leave to apply for judicial review, this court will take into account: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if an extension of time were granted.[4]

8.  The applicant is out of time for 10 weeks.  He alleged that he had not received the decision from the Judge.  

9.  According to the court record, the applicant had updated his address on 24/12/2019.  The notices for the hearing in February 2020 were sent to this address by registered and ordinary mail.  The former was returned unclaimed on 4/3/2020 while there was no return of mail in the latter.  Later, a letter was sent to the same address on 6/3/2020 to refix the hearing in February to April because of the pandemic.

10.  Meanwhile, the applicant updated his address on 15/6/2020.  Subsequently, a letter was sent to this updated address informing him of the new hearing date. The applicant attended the hearing in July.[5]

11.  The decision of Deputy Judge Lung was sent to the last updated address.  However, this address was slightly different from the address on the summons dated 28/10/2020.[6]  The applicant had not updated the latter address with this court.

12.  The Court of Appeal has repeatedly stressed that it is the duty of a litigant to provide the Court with an updated address.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant.[7]  In my view, the applicant must bear the consequence of failing to update his address with this court.

13.  As to the basis of his claim, the applicant alleged that he was targeted by the people from PML(N)  as he joined the PPP albeit his family members were members of the former.[8]  He joined an election in 2002 on behalf of the PPP.  He lost to a PML(N)  candidate.  He alleged that there was various misconduct by the other party.  He was attacked several times from 2003—2013 by the people from PML(N)[9].  They were angry with him for changing allegiance to PPP.  They also obstructed his campaign for the PPP during subsequent elections.  He had to leave Pakistan for his safety.

14.  The adjudicator noted that the applicant had not been sincere in pursuing his claim.  He had sought to delay at every opportunity.[10]  The adjudicator further pointed out the following significant points in the claim:

a.  The applicant was inconsistent whether he was a member of PML(N)  before joining the PPP.  In his NCF, he mentioned his disagreement with the values of PML(N)  and did not join it.  If party changing was not of significance as the applicant asserted in the 2^nd TCAB hearing, the adjudicator queried why he used it as the basis of his claim in the NCF.[11]

b.  The applicant asserted that Mahar Fayyaz was the instigator of the systematic attack on him.  It was personal hostility.  However, he did not mention this specifically in any of his statements.  He mentioned Fayyaz was a member of the provincial assembly during their dispute but in fact it was untrue. [12]

c.  The PPP obtained about 5% of the votes during the 2013 election in which the PML(N)  won.  The insignificance of the PPP cast great doubt that the PML(N)  had targeted him after the 2013 election as he asserted.[13]

d.  The appellant had left Pakistan since 2013.  His 1^st wife had died in 2017.  He had re-married in Hong Kong with a Filipino.  He claimed that his 4 children in Pakistan[14] were under pressure and could not go anywhere openly.  However, the applicant also claimed that his children would be spared if he was not in Pakistan.  Nonetheless, he requested the Director to allow him to go to the Philippines with his 2^nd wife.  The adjudicator was doubtful about the threat and his concern to the children.[15]

e.  The applicant wrote to the Director on 8/9/2015 to withdraw his claim as his problem was solved.  It was safe for him to return home.  He did not explain further.  He however wanted to reinstate his claim on 7/10/2015 asserting he and his family were under serious life threat.  The adjudicator pointed out that the applicant would have returned to Pakistan only for lack of finances to pay for a ticket and clearance from the Director.  The adjudicator wondered whether there was a problem in the first place.[16]

f.  The attacks were long drawn from 2003 to 2012.  Each attack was months—even a year or two—in between.  It was inexplicable that his enemy would act in such a manner had they wanted to kill the applicant.  There was no medical report in support the latest attack which was serious.[17]

g.  The applicant did not attempt to report to higher authorities.  He was active in politics and influential in 18 villages.  The assertion that the police refuse to register his complaint was not credible.[18]

h.  Before leaving Pakistan in 2013, the applicant lived with his 1^st wife and children in Jhelum and a hotel in Rawalpindi for an unknown period of time.  He did not try to relocate despite his background and several reasonable options.[19]

15.  The adjudicator rejected all his claims.  In gist, the adjudicator held that there was no public official involved.  There was no ill-treatment amounting to ‘a minimum level of severity’.  He was not under any threat of arbitrary deprivation of life.  It was a personal vendetta rather than persecution because of political belief.[20]

16.  I have carefully considered the reasons given by Deputy Judge Lung.  I agree with his judgment.  I also agree with the conclusion of the TCAB.

17.  I am of the view that there was no merit in the intended judicial reveal. The delay to appeal was significant.  He must bear the consequence of the change of address.  In the circumstances, I refuse his application for extension of time to appeal.