RE ANOOP SINGH

HCAL 2975/2018

[2022] HKCFI 599

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2975 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 29/11/2012. He was arrested for overstaying on 26/8/2013. He filed a non-refoulement claim on 28/8/2013 and 3/9/2013.

2.  On 8/1/2016, the Director dismissed the above claim in relation to BOR 3, persecution risk and torture risk.

3.  According to the applicant, he had a relationship with a rich schoolmate since 2010. She was from the upper social class. Her family disapproved the relationship. He was attacked by her brother’s gang in August 2012. They threatened to kill him. He dared not report to the police. He stayed away from them in the village of his grandparents. Later, his father informed him that the police looked for him about a drug trafficking offence. He decided to leave India.

4.  By a decision dated 3/4/2017, the TCAB dismissed his appeal. It found that there was one verbal threat and one physical attack.  The injuries did not amount to a minimum level of severe pain and suffering within the definition of torture under s.37U of the Immigration Ordinance.  There was no evidence of State consent, acquiescence and instigation.  The applicant was not targeted by any authorities despite the alleged false drug trafficking case.  The TCAB was satisfied that there was reasonable State protection and reasonable relocation options. There was no real risk of CIDTP or persecution risk.

5.  Meanwhile, the applicant failed to submit further information on BOR 2 risk. The Director dismissed the claim on BOR 2 risk based on existing information on 20/4/2017. He lodged an appeal to the TCAB on 4/7/2017. He was out of time for about 2 months.

6.  By a further decision dated 14/12/2018, another adjudicator disallowed the late filing of the notice of appeal.

7.  The adjudicator pointed out that the regime for late filing was a strict one. The delay was quite long. There was no real explanation for it. The adjudicator did not accept that the applicant was only informed about the decision by the Immigration Department. The adjudicator also considered the decision of the TCAB dated 3/4/2017. There was no additional evidence. The adjudicator also rejected the claim on BOR 2 risk. The adjudicator concluded that there was no good reason for the delay. He disallowed late filing of the notice of appeal on 14/12/2018.

8.  On 24/12/2018, the applicant filed the leave application for judicial review of the TCAB decision dated 14/12/2018.

9.  I agreed with the analysis of the adjudicator. The applicant gave no detail on the receipt of the further decision from the Director. That decision was sent to his last known address which was the same as that in the Form 86. Given that there was no additional evidence, the adjudicator was right to consider the decision of another adjudicator to ascertain the merits of the claim on BOR 2 risk. There was no error of law or procedure. The TCAB decision was reasonable. I refused leave on 19/2/2021.

10.  The applicant filed a summons on 15/3/2021 for extension of time to appeal against the decision of this court.  He was out of time by nearly 2 weeks. In his affirmation, the applicant asserted that he had no knowledge about the time limit and had insufficient resources. 

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.[1]

12.  The delay was significant. He had experience in handling the appeal to the TCAB. He should be aware of a time limit. There was no explanation of his effort to meet the deadline. Besides, I have also considered the prospect of the intended judicial review which was important at this stage.

13.  As set out in paragraphs 4, 7 & 9 above, the adjudicator found that the applicant did not have real risk of harm. 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.