Re Ikram Muhammad

HCAL 2445/2018

[2021] HKCFI 721

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2445 OF 2018

_____________________

_____________________

Before: Deputy High Court Judge P. LI in Chambers

Date of Decision: 25 March 2021

_____________________

D E C I S I O N

_____________________

1.The applicant is from Pakistan[1]. He came to Hong Kong illegally from Shenzhen on 4/2/2007. He was arrested by the police on 26/6/2007. He filed a torture claim on 14/7/2007.

2.He was twice imprisoned[2] for offences of taking employment without authority of the Director in 2007 and 2010. He withdrew his torture claim on 20/5/2013. He was scheduled to be repatriated on 9/8/2013. However, he absconded.

3.On 17/9/2015, he was arrested again for using an identity card relating to another. He was imprisoned for 15 months.

4.Meanwhile, he lodged the non-refoulement claim in this case on 16/10/2015 [3]. The Director rejected his claim on 26/8/2016.  The applicant filed an appeal to the TCAB on 5/9/2016.

5.Before the appeal was completed, the Director invited the applicant to file further evidence in relation to BOR 2 on 9/6/2017. He did not respond. On 28/6/2017, the Director further rejected the BOR 2 claim.

6.On 7/11/2017, an oral hearing was fixed before the TCAB. The applicant failed to attend. The TCAB considered the appeal on paper and refused the appeal on 5/3/2018 on all grounds.

7.On 2/11/2018, the applicant applied for leave for judicial review of the decision of the TCAB.  He was late for nearly 5 months in the leave application. He disagreed with the decision of the TCAB. He did not point out any error in the decision.

8.Deputy Judge Lung fixed a hearing on 28/11/2019. According to the call-1 Form, the applicant explained that he was arrested by the police one day before the hearing of the TCAB [4]. He was imprisoned for 16 months. He could not attend. However, he did not receive the letter from the TCAB which asked for an explanation of his absence. He did not explain why he did not receive that letter.[5]

9.Deputy Judge Lung found that the TCAB had not challenged the findings of the Director. As the applicant was absent, the TCAB could not question him to establish the factual basis of his claims. The TCAB found no credence in his evidence and rejected his claims. The Judge concluded that there was no reasonable prospect of success in the intended judicial review. The Judge refused extension of time for the leave application. Leave for judicial review was also refused on 29/7/2020.

10.The applicant filed a summons on 4/11/2020 for extension of time to appeal against the decision of Deputy Judge Lung [6]. He was about twelve weeks out of time.

11.In his affirmation in support of the application for extension of time, the applicant indicated that he was illiterate and unrepresented. He was not aware of the 14-day-requirement for appeal. He did not receive the decision from Deputy Judge Lung. He only knew about the decision from the Immigration Officer.

12.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.[7]

13.The applicant was out of time for about 12 weeks [8]. He claimed in his affirmation that he did not receive the decision of Deputy Judge Lung. According to the court record, that decision had already been sent to the applicant on 29/7/2020. However, it was returned on 30/9/2020. The reason marked on the envelope by the post office was ‘incomplete address’.

14.Similar situation occurred in August 2019, a letter sent to the applicant on 7/8/2019 from this court was returned on 26/8/2019. The same address was used. The reason marked on the envelope by the post office was ‘incomplete address’. Subsequent to this incident, this court confirmed the address with the applicant around 28/8/2019 on the phone. It was the correct address.

15.The notice of hearing before Deputy Judge Lung was sent to the same address on 24/10/2019. Presumably it had reached the applicant as he had attended the hearing. The applicant was again informed to update his address on the date of the hearing (28/11/2019). He signed to confirm the same address.

16.In fact, the applicant used the same address in the summons of the present application (4/11/2020).

17.It may not be entirely clear about the cause of the non-delivery in the post, however, the paramount importance in this application remains the merit of the intended judicial review.[9]

18.The factual basis of the claim is as follows. The applicant paid an agent[10] 530,000 rupees to arrange employment in Italy. The agent failed to arrange but refused to repay the sum. When the applicant pursued for repayment, the agent and the agent’s associates threatened and assaulted the applicant. The applicant feared that he would be harmed or killed by the agent and the agent’s associates if he returned to Pakistan.

19.The Director found that the injuries did not amount to “a minimum level of severity”. It was not severe pain and suffering within the definition of ‘torture’ under the Immigration Ordinance. There was no official involvement. There was reasonable State protection and internal relocation possibilities in Pakistan. The dispute was nothing to do with persecution. The Director doubted the credibility of the applicant as the whole family returned to their home and stayed for some time before the applicant left Pakistan.[11] The Director rejected the claims under BOR 3, persecution risk and torture risk.

20.On 28/6/2017, the Director further rejected the claim under BOR 2.

21.The applicant was absent from the TCAB hearing. Although he claimed that he was arrested one day before the TCAB hearing, there appeared no mention of the effort he made to inform the TCAB promptly. The adjudicator considered the appeal on paper as there was no explanation. She found that the initial statement submitted with the claim form was extremely brief and provided almost no detail. She set out the doubtful areas in detail which would affect the applicant’s credibility. The gist is as follows[12]:

a. What was the role/involvement of the applicant being a supporter of Pakistan Muslim League (N)?

b. What was the basis that the financial dispute with the agent was linked to the political activities?

c. How could the agent arrange work for the applicant in Italy?

d. Why did the applicant choose an agent known to be a political opponent (Pakistan People’s Party)?

e. After the initial attacks in 2004. Nothing happened until the last attack in 2006. What triggered the last attack before the applicant decided to leave Pakistan?

f. In 2013, after the applicant retracted the withdrawal of his torture claim and decided to stay in Hong Kong, he did not file a fresh claim but stayed illegally in Hong Kong until he was arrested again in September 2015. [13]

22.Given the above and in the absence of explanation, the adjudicator found no credence in the applicant’s factual basis of the claims. She rejected all claims.

23.Since the adjudicator did not challenge the findings of the Director, coupled with the queries on credibility, Deputy Judge Lung concluded that there was no reasonable prospect of success for the intended judicial review.

24.I agree with the decision of Deputy Judge Lung. There is no merit in the intended judicial review. In the circumstances, I dismiss his application for extension of time to appeal.

The applicant was unrepresented.