RE JOHEB CIRAJ CHOUDHARY

HCAL 2955/2018

[2022] HKCFI 597

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2955 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 sneaked into Hong Kong on 20/1/2018 from Shenzhen. He surrendered to the Immigration Department on 25/1/2018. He filed the present non-refoulement claim on 25/1/2018.[1]

2.  About 2010, he joined Shiv Sena which was a fanatic Hindu political party. He participated in their illegal activities. In 2011, he cut all ties with Shiv Sena. His friend warned him that he would be in trouble. In October 2011, he was assaulted by people from Shiv Sena. The police refused to take his report. He moved to various places including Pune, Surat, Ahmedabad and Mumbai to avoid trouble. His mother complained to the senior police officers but it was useless. He left India for Hong Kong on 10/9/2012.

3.  In March 2016, he was repatriated back to India. He paid INR50,000 to the people of Shiv Sena to settle the dispute. However, they continued to assault him and extort money from him. He hid at various places in Kolkata and Mumbai. He was in great distress. He finally left India for China on 19/5/2017. He sneaked into Hong Kong in January 2018. He would be in danger if returned to India as the people from Shiv Sena would harm or kill him.

4.  His non-refoulement claim was rejected on 26/3/2018 by the Director.  The appeal was dismissed by the TCAB on 20/7/2018.

5.  The adjudicator found that the applicant was not credible and rejected his appeal. He told the adjudicator that he had not joined any political parties. He had not participated in the illegal activities of Shiv Sena. These were contradictory to the facts in the TCF (2013). The complaint letter written by his mother was not about any threat and assault from the people of Shiv Sena. He had exaggerated the assault in 2011. He was not seriously injured. The medical reports did not prove that he was assaulted by the people from Shiv Sena. In his NCF (2018), he did not mention the further assault which took place in 2016. He only mentioned that during the screening interview.

6.  On 24/12/2018, the applicant filed the leave application for judicial review of the TCAB decision.  The applicant was out of time in filing the Form 86 by about two months.[2] The applicant did not provide any explanation for the delay. In considering whether there is good reason for the delay, I have considered the length of the delay, the reasons for the delay, the merits of the application and the prejudice to the putative respondent if extension was granted. [3]

7.  This court agreed with the findings of the adjudicator. The applicant was not credible.  His evidence was contradictory in some important aspects. There was no error of law or procedure. The TCAB decision was reasonable. There was no merit in the intended judicial review. There was no explanation for the delay. There was no good reason to extend time for the intended judicial review. Leave for the intended judicial review was refused on 4/12/2020.

8.  The applicant filed a summons on 11/3/2021 for extension of time to appeal against the decision of this court.  He was out of time by more than 2½ months. In his affirmation, the applicant asserted that he had not received the decision of this court. 

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 delay was substantial. According to the court record, the decision was sent to his last known address on 4/12/2020.[5] It was returned.

11.  According to the court record, the applicant had collected the decision on 11/1/2021 from this court in person. He updated his address on the same date. The applicant had not updated his address with this court in time. He must bear the consequences due to that failure.

12.  Besides, I have also considered the prospect of the intended judicial review which was important at this stage.

13.  As set out in paragraph 5 above, the adjudicator found that 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.

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