Re Ashraf Muhammad

HCAL 1755/2018

[2021] HKCFI 3298

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1755 OF 2018

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Before: Deputy High Court Judge P. Li in Chambers

Date of Decision: 11 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 25/12/2015. He surrendered to the Immigration Department on 15/2/2016. He lodged the non-refoulement claim in this case on 29/6/2016.[2]

2.He was in fear that he might be harmed by 3 men. They were arrested because he told the police their whereabouts in 2001. He was attacked by those three men after they were released from jail in March 2001. He then came to Hong Kong for his safety. He was repatriated to Pakistan in November 2009. In early 2010, someone shot at his house at night, he believed it was done by those men. He was in fear and fled to Lahore and Omman. He returned to Pakistan in March 2013. When he learned that those three men were still looking for him and threatened to kill him, he left Pakistan for China in June 2013. He stayed in China for 2 years before sneaking into Hong Kong on 25/12/2015.

3.His non-refoulement claim was rejected on 15/5/2017 by the Director. The appeal was dismissed by the TCAB on 16/8/2018.

4.The adjudicator found that the applicant’s story was not credible. If his fear was so real, there was no reason for him to return to Pakistan every now and then. His story was based on hearsay and unconvincing. There were serious inconsistencies between his NCF and his oral evidence. There was no reliable evidence that he had suffered physical or mental harm to a minimum level of severity. He had never reported to the police. There was state protection and reasonable relocation options. The adjudicator dismissed his appeal.

5.On 27/8/2018, the applicant applied leave for judicial review of the decision of the TCAB. He applied to withdraw his leave application which was granted on 7/3/2019. He subsequently applied to re-instate his leave application. Deputy Judge KW Lung granted the application on 26/11/2019. An oral hearing was eventually fixed on 26/11/2020. The delay was due to the pandemic. The applicant was absent. Deputy Judge CP Pang dealt with his leave application on paper.

6.The Judge pointed out that the adjudicator disbelieved the applicant’s story after analysis of the evidence. The adjudicator found that he was not a credible witness. The adjudicator then rejected the factual basis of his claim. The applicant was given reasonable opportunity to state his case. There was no unfairness. The Judge agreed that the evidence could not establish a real risk of harm. There was no error of law or procedures. The TCAB decision was rational. The Judge refused leave on 12/1/2021.

7.The applicant filed a summons on 2/3/2021 for extension of time to appeal against the decision of Deputy Judge Pang. He was out of time for about 5 weeks.

8.In his affirmation, the applicant indicated that he did not receive the decision of Deputy Judge Pang. According to the court record, the decision of Deputy Judge Pang was sent to the address updated by the applicant on 5/10/2020 when he applied for re-instatement of his leave application. In his summons dated 2/3/2021, it appears that he had moved to a new address. The applicant is under a duty to update his address.[3] He had not updated his address with this court, he must bear the consequence of any failure in communication.

9.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.[4]

10.The applicant is out of time for about 5 weeks. It is substantial. His explanation is unsatisfactory. In addition, I also consider the prospect of the intended judicial review.

11.As set out in paragraph 4 above, the adjudicator found that the applicant was not credible. The adjudicator rejected the factual basis of his claim. I agree with the decision of the TCAB. I also agree with the decision of Deputy Judge Pang. In my judgment, there is no merit in the intended judicial review.

12.Having considered all relevant factors, I refuse the application for extension of time to appeal.

The applicant was unrepresented.