RE SHAIKH SAJED

HCAL 2306/2018

[2021] HKCFI 2624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2306 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 30/5/2015 as a visitor. He overstayed until he was arrested on 16/6/2015. He filed the non-refoulement claim in this case on 6/7/2015. His claim was rejected by the Director on 14/7/2017. His appeal was dismissed by the TCAB on 12/10/2018.

2.  The applicant was a member of the CPIM [1]. Before 2015, the CPIM was the ruling party at his home area.  In 2012-2014, some TMC [2] members assaulted him and threatened to kill him on three occasions.  They demanded him to change allegiance to the TMC.  He refused.  Eventually, he left India via China to Hong Kong on 26/12/2014 to avoid the TMC members.

3.  He returned home on 8/1/2015 as his friend told him that the conflict had been resolved.  However, in April 2015, he was attacked by a TMC member again.  The TMC had since won the election and became the ruling party at his home area.  He reported to the police who took no action.  On 18/5/2015, he left India via China to Hong Kong.

4.  The adjudicator found that the applicant had very little knowledge about the CPIM.  The evidence on his participation of party activities was vague and evasive.  He told the adjudicator an inconsistent account of the past events.  The adjudicator concluded that the applicant was not truthful.  He would not face any real risk if returned to India.  The adjudicator rejected the appeal on 12/10/2018.[3]

5.  The applicant filed the leave application on 23/10/2018.  In his affirmation, he did not raise any specific grounds of review.  He stressed that he was not satisfied with the decision of the Immigration Department.  His life was still in danger.

6.  Deputy Judge C.P. Pang pointed out that the past ill-treatment was of low intensity and frequency.  It did not support any real risk of future harm.  The applicant did not hold any senior post.  There was no valid reason for the TMC members to attack him.  There was also no reason to pursue the matter after all these years.  The Judge found no error of law and procedure.  The decision of the TCAB was reasonable.  The Judge refused leave on 19/1/2021. [4]

7.  The applicant filed a summons on 14/4/2021 for extension of time to appeal. In his summons and affirmation, he stated that he only found the decision in the letter box on 12/4/2021.  He was about 10 weeks out of time.

8.  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.[5]

9.  I notice that the applicant had supplied another address in the summons dated 14/4/2021.  He had not updated this address with this court.  In any event, he did not allege that the delay was due to the change of address.

10.  According to the court record, the decision of the Judge had already been sent to his previous address on 19/1/2021.  It was also the address on the Form 86.  There was no return of mail.  The applicant did not explain the surrounding circumstances under which he discovered the decision in the letter box on 12/4/2021.

11.  The delay was substantial.  I do not accept his reason for the delay.  However, the important issue is the merits of the intended judicial review [6].

12.  I agree with the findings of the adjudicator.  The applicant was not truthful.  His evidence could not support his claim.  I also agree with the decision of Deputy Judge Pang.[7]  The intended judicial review was of no merit.

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