Re Kashif Butt

HCAL 994/2018

[2021] HKCFI 2693

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 994 OF 2018

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Before:  Deputy High Court Judge P. Li in Chambers

Date of Decision:  15 September 2021

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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 on 3/7/2009 from China. [1] He was arrested by the police on 14/9/2009.[2] He filed a torture claim on 5/7/2010. It was rejected by the Director on 25/2/2011.

2.In May 2013, he filed the present non-refoulement claim. The Director rejected his claim on 11/11/2016 [3]. The TCAB refused his appeal on 14/2/2018. 

3.On 1/6/2018, the applicant applied for leave for judicial review of the decision of the TCAB.  In his affirmation, he repeated that his life would be in danger if refouled. He was about 2½ weeks out of time in the leave application.

4.Deputy Judge C. P. Pang dealt with the leave application on paper. He pointed out that the applicant did not request for extension of time nor explained the delay. The TCAB found that the applicant was not truthful. The TCAB rightly rejected the evidence of the applicant. There was no real risk of CIDTP. There was no error of law and procedure. The TCAB decision was reasonable.[4] Deputy Judge Pang refused leave on 22/10/2020.

5.The applicant filed a summons on 26/1/2021 for extension of time to appeal against the decision of Deputy Judge Pang.  He was about 11 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 Pang until an Immigration Officer told him about it. He was unrepresented and was ignorant about the time limit. He did not know he could request for a hearing.

7.In considering whether to extend time for appeal against the refusal of leave, 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.[5]

8.The applicant is out of time for over 11 weeks.  It is substantial delay. According to the court record, the decision of Deputy Judge Pang was sent to the last known address on 22/10/2020.  There was no return of mail. The applicant had not given detail as to when he was detained in CIC again. He did not mention when the Immigration Department informed him of the result of the leave application nor did he mention the action he had taken to mitigate the effect of the delay.

9.The applicant also complained that he was ignorant about the time limit of the appeal on refusal of leave. It is trite that any applicant must try his best to familiarize with relevant procedures in relation to his claim. The applicant had the experience of lodging an appeal to the TCAB within time. It is no excuse that he did not ask about any time limit for the leave application and subsequent appeal. In any event, the prospect of the appeal is crucial issue at this stage.

10.As to the basis of his claim, the applicant alleged that ‘Malik’ threatened his family to give up his father’s land adjacent to Malik’s factory.  Malik also owed his father a debt for goods supplied. Malik was a member of the PPP [6] which had great influence on the police. His family was assaulted by Malik and his gang on several occasions because of those disputes. Malik also filed a false allegation of robbery and possession of a firearm against him to the police leading to his arrest and charge. He feared about his safety and left Pakistan before the trial came up in 2005.

11.The applicant did not turn up for the TCAB hearing on 3/1/2018. The adjudicator dealt with the appeal on paper. In gist, the adjudicator concluded that the story of the applicant was not truthful. There was no real risk of harm. [7]  Deputy Judge Pang agreed with the conclusion.

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

13.There was no merit in the intended judicial review.  The delay was significant with unsatisfactory explanation. In the circumstances, I refuse his application for extension of time to appeal.

The applicant was unrepresented.