RE SHAH ZAHID

HCAL 137/2019

[2022] HKCFI 509

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 137 OF 2019

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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 from Shenzhen on 20/2/2016. He was arrested on the same day. He lodged a non-refoulement claim in this case on 22/2/2016.

2.  While in primary school in 2015, he had a good friend “Z” who was a Christian. He accompanied “Z” to church but he did not join the activities. About October 2015, he was stalked and attacked by 2 villagers from his village. They thought he had become a Christian. He was injured and took a week to recover. His father took him to stay with his uncle in another village. He flew to Guangzhou by air and later sneaked into Hong Kong through Shenzhen in February 2016. He was never harmed by the Taliban. He had no direct encounter with them. He only heard that the Taliban were a terrorist group targeting Christians in Pakistan. He did not know whether “Z” was ever threatened or harmed by the villagers.

3.  The Director rejected his claim on 29/9/2017.  The adjudicator dismissed his appeal on 6/12/2018.

4.  The adjudicator found that the applicant was not credible. The applicant went to a mosque regularly. He just stayed near a church waiting for “Z”. It was unconvincing that these circumstances would cause misunderstanding as he asserted. The applicant had socialized with “Z” for quite some time. There was no one in his home village troubled by this inter-religious relationship. It was unreasonable that the Taliban was not aware of it. They must have objected to this problematic relationship if the applicant’s assertion was credible. The applicant was 23 and “Z” was 22 when this incident happened. It was unusual that they still studied in the primary school.

5.  On 14/1/2019, the applicant applied for leave for judicial review the TCAB decision. In his affirmation, he mainly criticized the approach of the Director. He also pointed out that the adjudicator had not given sufficient chance for him to arrange relevant evidence for his claim and the appeal.

6.  A hearing was fixed on 13/9/2021 before this court. The applicant was absent. This court would consider the leave application on paper. The decision of the TCAB is the final decision. The decision of the Director is not susceptible to judicial review. I would therefore concentrate on the decision of the TCAB.  [1]

7.  The adjudicator had arranged three oral hearings for the applicant. In the first two hearings in May and August 2018, the applicant was absent. He alleged that his child was sick. The adjudicator finally rescheduled the hearing to October 2018 despite there was no documentary proof of his child’s condition.  There was ample time for the applicant to prepare for the appeal. During the hearing, the adjudicator had given ample time for the applicant to respond.

8.  I agreed with the adjudicator that the applicant was not credible. The adjudicator was justified in rejecting the factual bases of the applicant’s claim. I did not find any error of law or procedure in the TCAB decision.  It was reasonable given the evidence.

9.  The applicant filed a summons on 3/1/2022 for extension of time to appeal against the decision of this court.  He was out of time for more than 3 weeks. In his affirmation, he asserted that he had only received the decision after the deadline for appeal.

10.  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.[2]

11.  The delay was substantial. There was no detail about the late receipt of the decision. The merit of the intended judicial review is also an important factor. As set out in paragraph 4 above, there is no merit in the intended judicial review.  Having considered all factors, I refuse extension of time for appeal.