RE SANDEEP KUMAR

HCAL 2992/2018

[2022] HKCFI 215

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2992 OF 2018

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D E C I S I O N

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1.  The applicant is from India. He came to Hong Kong on 11/8/2016 illegally. He surrendered to the Immigration Department on 12/8/2016. He lodged the non-refoulement claim in this case on 1/11/2016.[1]

2.  The basis of his claim was that he would be ill-treated by BJP associates [2] if returned to India. The police would arrest him because of some false accusation by the BJP associates.

3.  He was active in the INC [3]in his village. Many villagers followed him to join the party. Around the MLA[4] election in 2014, he canvassed votes for the INC. BJP associates threatened that he would be in trouble if he did not join them. One day in 2014, the BJP associates assaulted him. He was hospitalized for 12 days. He was blamed for the defeat of the BJP candidate in the election. They filed a false accusation against him. He hid himself at various places in 2015. He went to Dubai in 2016 but failed to find a job. He returned to India after a month. He left India in April 2016.

4.  His non-refoulement claim was rejected on 6/10/2017 by the Director. The appeal was dismissed by the TCAB on 21/12/2018.

5.  The adjudicator found that the applicant was not truthful. He fabricated the attacks and threats. He initially asserted that DD Sharma was the person attacking him but in his NCF he stated it was Birender Singh. Later in his notice of appeal, he mentioned Varinder Sinum was the person who tried to kill him. He obtained a passport to go to a safe country 2 months before the conflict between INC and BJP had started. He even applied a visa to work in Malaysia during the conflict but did not mention it in the NCF. He knew nothing about the nature of the false accusation. The police had made no attempt to arrest him.

6.  On 28/12/2018, the applicant filed the leave application for judicial review of the decision of the TCAB.

7.   This court agreed with the analysis of the adjudicator. There were serious discrepancies in the evidence of the applicant. He was not credible. There is no error of law or procedure. The TCAB decision is reasonable. This court refused leave on 10/8/2021.

8.  The applicant filed a summons on 24/9/2021 for extension of time to appeal against the decision of this court. He was out of time by one month.

9.  In his affirmation, the applicant asserted that he did not receive the decision from this court.

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.[5]

11.  The delay was substantial. The decision was sent to his last known address. There was no return of mail. The applicant had moved to a new address according to the summons dated 24/9/2021. He did not allege that he failed to receive the decision due to the move. Had it been the case, he must bear the consequence as he did not inform this court of the move. Besides, the prospect of the intended judicial review is also an important factor at this stage.

12.  As set out in paragraph 5 above, the adjudicator rejected the evidence as the applicant was not credible. I agree with the decision of the TCAB. 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.