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HCAL 1777/2018
[2021] HKCFI 2688
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 1777 OF 2018
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| Re: |
MOHAMMED SAQIB |
Applicant |
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Before: Deputy High Court Judge P. Li in Chambers
Date of Decision: 15 September 2021
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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 27/4/2013 as a visitor. He overstayed until he was arrested on 1/9/2013. He lodged the non-refoulement claim in this case on 3/9/2013.
2. The basis of his claim was that he might be harmed by Poja’s father and brother. The dispute arose as he had fallen in love with Poja. They could not marry because of differences in religion. In 2013, he eloped with Poja. On knowing this, Poja’s father went to his shop to confront him. He was not there. Poja’s father assaulted his sister who refused to disclose his whereabouts. Later, he went to Poja’s home to meet her father. During an argument, he assaulted her father. He was afraid as Poja’s family was connected with some influential and dangerous people. He decided to leave India for Hong Kong.
3. His non-refoulement claim was rejected on 31/12/2015 [1] and 25/1/2017 [2] by the Director. The appeal was dismissed by the TCAB on 23/4/2018.
4. The adjudicator found that Poja’s father and brother had never ill-treated the applicant. The threat was related to him by his mother only. There was no independent evidence to support that he was at risk of harm. There was no documentary record that a report was made against him for assaulting Poja’s father. The adjudicator concluded that there was insufficient evidence in support of his claim. The adjudicator dismissed his appeal.
5. On 29/8/2018, the applicant applied leave for judicial review of the decision of the TCAB. He was out of time for over a month. In his affirmation, he alleged that the TCAB decision was unfair and unreasonable.
6. Deputy Judge Lung fixed a hearing on 14/1/2020. The applicant was absent from the hearing. The Judge considered his leave application on paper. The Judge found no error of law. There was no reasonable prospect of success in the intended judicial review. The Judge refused leave on 29/6/2020.[3]
7. The applicant filed a summons on 5/10/2020 for extension of time to appeal against the decision of Deputy Judge Lung. He was out of time for 12 weeks.
8. In his affirmation, the applicant indicated that he only received the court decision on 10/8/2020. He had no knowledge of the procedures and had to rely on his friend for assistance. He could not afford a lawyer or an interpreter. There were many other grounds for appeal but he had not given any details.
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. According to the court record, the decision was sent to his last known address on 29/6/2020. It was the same address as in the summons. There was no change of address. There was no return of mail. The applicant claimed that he only received the decision on 10/8/2020. There was no further detail as to the circumstances of this delay. How and from whom he eventually got the decision. He did not explain the further delay of 2 months before he filed the present summons in October. I find his explanation very unsatisfactory.
11. A claimant is not entitled to legal assistance at all stages of the proceedings. He should seek assistance with his own resources. The applicant filed a 2-page-typewritten grounds of relief. This indicated that he was able to find assistance.
12. The applicant is out of time for 12 weeks. It is substantial. His explanation is unsatisfactory. In addition, the prospect of the intended judicial review is also an important factor.
13. As set out in paragraph 4 above, the adjudicator found that there was insufficient evidence to support his claim. I agree with the decision of the TCAB. I also agree with the decision of Deputy Judge Lung. 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.
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(P. Li) |
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Deputy High Court Judge |
The applicant was unrepresented.
[1] On BOR 3, torture risk and persecution risk.
[2] On BOR 2.
[3] The Judge did not consider the delay in filing the leave application. He ruled that the intended judicial review was of no merit. Had the Judge considered the delay, the outcome would be the same.
[4] Jagg Singh [2020] HKCA 844, §10—12.
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