RE KHAN SHAHBAZ

HCAL 2953/2018

[2021] HKCFI 2903

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2953 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 12/5/2008 as a visitor. He was arrested on 21/7/2008 for overstaying. He filed a torture claim on 25/7/2008 which was withdrawn on 24/10/2013. He lodged the non-refoulement claim in this case on 21/10/2013.

2.  The applicant was the eldest son in the family. He inherited a plot of land from his father. As he was under 18 years of age then [1], his mother looked after the land for him. Since 2006, his uncles demanded him to transfer the plot of land to them. They assaulted him. He was injured and treated by his mother. He had stayed away from his uncles in Delhi. In 2007, when he returned to Kolkata, his uncles came and assaulted him again. They threatened to kill him if he did not sign the transfer documents. He stayed with his mother’s friends to avoid his uncles. On 11/5/2008, his mother arranged him to take a flight to Hong Kong. He stayed in Hong Kong with a friend until he was arrested for overstaying. He had no knowledge of the non-refoulement scheme. He did not apply earlier. His mother told him in 2012 that the uncles still put pressure on her to transfer the land title. He had since lost contact with his family.

3.  His non-refoulement claim was rejected on 25/8/2017 by the Director. The appeal was dismissed by the TCAB on 18/4/2018.

4.  The applicant defaulted the TCAB hearing fixed on 5 March 2018.  The applicant did not file any explanation in response to the request letter.  The adjudicator decided to proceed with the appeal in his absence. [2]

5.  The adjudicator stressed that he could not clarify the doubtful points as the applicant did not attend the oral hearing. He pointed out the following and concluded that the applicant was not truthful. The adjudicator rejected the applicant’s assertion that there was threat or assault. He rejected the appeal on 18/4/2018:

(a)  The applicant asserted that he inherited all the land from his father as he was the eldest son.  By the same reasoning, one of the uncles, who was older than the applicant’s father, should have inherited all the land from his grandfather.

(b)  There was persistent pressure by his uncle from 2006 to 2008. There was no explanation how the applicant withstood the pressure.

(c)  According to Indian law, the applicant could only enter into a contract at the age of 18. As the applicant was under 18 in 2006—2008, he could not transfer any title to his uncles. His fear that he might be forced to sign transfer documents was not real.

(d)  If the applicant died intestate, the uncles might not be able to obtain the title of the land.  It was not to their interest to kill the applicant.

(e)  He could relocate to other cities such as New Delhi and Mumbai and stayed away from his uncles.

6.  On 24/12/2018, the applicant applied leave for judicial review of the decision of the TCAB.  He was out of time for over 5 months. In his affirmation, the applicant only mentioned that he was not satisfied with the decision of the TCAB. He mentioned that his life was in danger in his home country.  He did not explain his absence from the TCAB hearing. He did not point out any error in the TCAB decision.

7.  This court dealt with the leave application on paper. I was satisfied that the adjudicator had complied with the requirements under ss.13 & 15, schedule 1A of the Immigration Ordinance.[3] The decision to determine the appeal in the absence of the applicant was correct.

8.  The applicant did not apply for extension of time for the leave application. He did not provide any explanation for the delay.  In considering whether there was good reason for the delay, I had also considered the merits of the intended judicial review.[4] I agreed with the decision of the TCAB.  There was no error of law and procedure.  The decision of the TCAB was reasonable. There was no good reason to extend the time for the leave application. I refused leave on 25/11/2020.

9.  The applicant filed a summons on 18/6/2021 for extension of time to appeal against the decision of this court. He was out of time for more than 6 months.

10.  In his affirmation, the applicant indicated that he was not given an opportunity to clarify his case. He was in person and was not aware of the 14-day limit.

11.  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]

12.  According to the court record, the decision was sent to his last known address on 25/11/2020. There was no return of mail. In my view, a claimant should familiarize himself with any time limit in law. In fact, he had the experience of dealing with the appeal to the TCAB. He was within time then. He must be alerted to the possibility of a time limit in appeal on refusal of the leave application.

13.  On 5/8/2021, the applicant wrote to this court stating that on 25/11/2020 he was detained in Lai Chi Kok. He only learned about the refusal of the leave application when he was transferred to CIC. That was the reason for the delay.

14.  There was no information about the date of his transfer to CIC. There was no information about the date when he was notified. Most importantly, he did not mention this reason in his affirmation in support of the summons filed on 18/6/2021. I find his explanation very unsatisfactory.

15.  The applicant is out of time for over 6 months. It is substantial delay. His explanation is unsatisfactory. At this stage, the prospect of the intended judicial review is also an important factor.

16.  As set out above, the adjudicator found that the applicant’s evidence was not truthful. The adjudicator rejected the basis of the applicant’s claim. I agree with the decision of the TCAB. In my judgment, there is no merit in the intended judicial review.

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