RE MOHAMMED SAHABAZ

HCAL 3014/2018

[2022] HKCFI 121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3014 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 27/11/2013 as a visitor. He overstayed until he surrendered to the Immigration Department on 17/2/2014. He lodged the non-refoulement claim in this case on 4/4/2014.

2.  He feared that his uncle would harm or kill him because of a land dispute. The father of his fiancée would harm him as he had another girlfriend in Hong Kong. He inherited 30% ownership of the house from his grandmother. His uncle who had 70% was not happy. His uncle threatened to kill him and forced him to give up his share. He refused. In November 2013, during a discussion about the dispute, he scuffled with his uncle who threatened to kill him. He was in great fear and left India on 12/11/2013. He however returned to India after staying in Hong Kong for 5 days. Later, his uncle even assaulted his father. He finally decided to leave India on 27/11/2013. Since then, his father had moved to Kolkata to avoid his uncle.

3.  His non-refoulement claim was rejected on 29/1/2018 by the Director. The appeal was dismissed by the TCAB on 24/12/2018.

4.  The adjudicator found that there was no real risk of harm. The evidence showed that his fear was from a private person. The dispute was financial and private in nature. No public official was involved. There was no evidence that the police in general failed to exercise due diligence to investigate or punish offenders. The harm which the applicant feared was not within the definition of ‘torture’. It did not arise from one of the reasons under the Refugee Convention. There was reasonable relocation options. There was no evidence that the human rights condition was so dire to threaten his right to life in India.

5.  On 31/12/2018, the applicant filed the leave application for judicial review of the decision of the TCAB.

6.  This court agreed with the findings of the adjudicator that the evidence did not support a real risk of harm albeit there might be a small risk. The adjudicator had fairly conducted the oral hearings. The analysis of the evidence was correct. There was no error of law or procedure. The TCAB decision was reasonable. Leave was refused on 8/9/2021.

7.  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 for about 2 days.

8.  In his affirmation, the applicant indicated that he had to raise funds to pay the court fee for the appeal.

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.[1]

10.  While the delay was short, there was no detail as to his effort to meet the deadline. At this stage, the prospect of the intended judicial review is also an important factor.

11.  As set out in paragraph 4 above, the adjudicator rejected the evidence as the evidence could not support any non-refoulement claim. There was no real risk of harm. I agree with the decision of the TCAB. In my judgment, there is no merit in the intended judicial review.

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