RE ABDUL RAHAMAN

HCAL 506/2019

[2021] HKCFI 2455

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 506 OF 2019

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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 12/8/2011 as a visitor. He overstayed until he was arrested on 30/10/2011. He lodged a torture claim which was rejected by the Director and TCAB on 13/2/2012 and 22/6/2012 respectively. He later filed the non-refoulement claim in this case on 17/7/2013.

2.  Around 2003, he fell in love with a rich Hindu girl (M).  He was aware of the difference in religion.  They therefore kept the relationship unknown to both families.  The relationship continued until 2009 when M’s brother discovered it.  M’s brother threatened to harm him if he did not stop dating M. M’s brother assaulted him several times in 2009 [1]. His head was injured and needed sutures.  He did not report to the police to avoid further trouble.  He left India in August 2011 for his safety.

3.  The Director pointed out that his injuries did not amount to ‘a minimum level of severity’.  M’s brother did not intent to kill or harm him seriously despite the repeated assaults.  He was safe before leaving India.  There was no evidence that M’s brother objected to the relationship because of religion.  He had left India for 6 years, the hostility should have subsided.  He delayed for about 3 months before lodging any claim.  This was inconsistent with the fear he alleged.  There was reasonable State protection and relocation options.  The Director concluded that the future risk of harm was low and rejected his claim on 30/11/2017.

4.  The adjudicator rejected the appeal on 15/2/2019.  The adjudicator concluded that the relationship with M and the subsequent attacks by M’s brother were a complete fabrication.  Despite the relationship, the applicant knew very little about the background of M.  He did not even contact M after he arrived at Hong Kong.  He did not know the name of M’s brother.  He was inconsistent as to when he moved to the new house and the attack at Nikko Park. All these affected his credibility. [2]

5.  The applicant filed the leave application on 21/2/2019.  In his affirmation, he raised several grounds including lack of legal representation, lack of language assistance, the authenticity of the COI and the effectiveness of the reforms recorded therein.

6.  This court fixed a hearing on 19/1/2021.  The applicant had nothing to update.  He had no complaint against the proceedings in the TCAB.  He made no complaint that he could not understand the appeal bundle nor that he had language problems as asserted in his affirmation.

7.  This court found no error of law and procedure, the decision of the TCAB was reasonable.  This court also rejected the other grounds stated in his affirmation in support of the leave application.  This court refused leave on 30/3/2021. [3]

8.  The applicant filed a summons on 7/4/2021 for extension of time to submit further documents.  In his summons and affirmation, he asked for more time to submit documents to prove that the BJP [4] had killed many Muslims.

9.  The applicant had raised this issue of religious persecution in a letter dated 18/5/2020.  This court had already rejected it in the decision dated 30/3/2021.  The main reasons being that this issue was never raised before the Director or the TCAB.  His claim then was not based on religious persecution.  The applicant came to Hong Kong in 2011, he should have ample time to retrieve whatever documents to support this assertion. [5]

10.  As the content of the summons was not clear, this court processed it as an application for extension of time to appeal.  Had the applicant meant for an appeal, he was well within time as of the date of the summons.  In any event, at the time (16/4/2021) when this court first dealt with the summons, the applicant was out of time for his appeal.  This court would therefore deal with the summons on the basis that it was out of time.

11.  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.[6]

12.  Given the background of this case, the applicant was about 3 days out of time.  It was not substantial.  At this stage, however, the important issue is the merits of the intended judicial review [7].

13.  I agree with the findings of the adjudicator.  The applicant was not truthful. His relationship with M was unconvincing, likewise, the threats and assaults by M’s brother.  I reject the other grounds raised by the applicant in his affirmation in support of the leave application. The intended judicial review was of no merit.

14.  I refuse the application for extension of time to appeal.