Re Umar Muhammad

HCAL 2476/2018

[2021] HKCFI 3543

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2476 OF 2018

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Before:  Deputy High Court Judge P. Li in Chambers

Date of Decision:  30 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 21/8/2009. He was arrested by the police on the same day. He lodged the non-refoulement claim in this case on 30/5/2013.[2]

2.He had a land dispute with his uncle.  He was in fear that he might be harmed by his uncle’s family. In around 2006, his uncle and cousins threatened to harm his family alleging that the inheritance from his grandfather was unfairly distributed. On one occasion, his cousin slapped him while he was on his way to school. His family moved to several places within the home town to avoid his uncle and cousins. They were safe until 2009.

3.In June 2009, his cousin attempted to stab him by his neck with a knife-like object after a cricket match. He managed to escape. It was because his father had made a will leaving his properties to him and his 2 brothers. He was targeted being the eldest son. His father told him to leave Pakistan for his safety. He went to China on 5/8/2009. After about 16 days, he sneaked into Hong Kong.

4.His non-refoulement claim was rejected on 30/8/2017 by the Director.  The appeal was dismissed by the TCAB on 22/10/2018.

5.The adjudicator found that the applicant’s evidence was fanciful. His claims could not be substantiated.  There was no reason that his uncle did not harass his 2 brothers as all of them had inherited the properties. The applicant’s explanation that his uncle would wait until his brothers attained the age of 18 was unacceptable. Besides, it was unreasonable that his family continued to stay in the vicinity of the home town (Gujranwala) despite the harassment. It was also unreasonable that his parents and sisters were not at risk. The applicant’s father could afford paying off his uncle, he however refused and left his sons at risk. The adjudicator doubted if the risk was genuine.

6.On 6/11/2018, the applicant applied leave for judicial review of the decision of the TCAB.  Deputy Judge CP Pang dealt with his leave application on paper.

7.The Judge pointed out that the adjudicator disbelieved the applicant’s evidence finding it fanciful.  The adjudicator found that the applicant fabricated his evidence.  The adjudicator rejected the factual basis of his claim.  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 26/1/2021.

8.The applicant filed a summons on 22/3/2021 for extension of time to appeal against the decision of Deputy Judge Pang.  He was out of time for about 6 weeks.

9.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 same address as in his summons dated 22/3/2021. There was no change of address. There was no return of mail. 

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.[3]

11.The applicant is out of time for about 6 weeks.  It is substantial.  His explanation is unsatisfactory. I have grave doubt about it. In addition, I also consider the merits of the intended judicial review.

12.As set out in paragraph 5 above, the adjudicator found that the applicant fabricated his evidence.  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.

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

The applicant was unrepresented.