RE GURINDER SINGH

HCAL 2900/2018

[2021] HKCFI 1956

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2900 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 was born on 18/3/1990. He came to Hong Kong on 26/4/2014 as a visitor. He overstayed until he was arrested on 27/3/2015. He lodged the non-refoulement claim in this case on 29/3/2015.

2.  The basis of his claim was that his uncle might harm or kill him if he returned to India.  This case arose from a land dispute between his father and his uncle.  In addition, the Indian police falsely accused him of using the land of his uncle without permission.  He was wanted by the police.

3.  The Director rejected his non-refoulement claim on 14/2/2018.  The applicant appealed to the TCAB.  The appeal was dismissed on 26/11/2018.

4.  On 18/12/2018, the applicant applied for leave for judicial review of the decision of the TCAB.  He stressed in his affirmation that his uncle wanted to kill him.  There was no protection from the police.  It was impossible for him to relocate.

5.  This court considered his leave application on paper.  Leave was refused on 10/11/2020.  There was no error of law or procedure.  The decision of the TCAB was reasonable.

6.  The applicant filed a summons on 26/11/2020 for extension of time to appeal against the decision of this court.  He was out of time for 2 days.

7.  In his affirmation in support of the application for extension of time, the applicant indicated that he did not have any knowledge and resources to process the appeal.

8.  In considering whether to extend time for appeal against the refusal of leave to apply for judicial review, this court will take into account: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if an extension of time were granted.[1]

9.  The applicant was only out of time for 2 days.  However, his lack of knowledge was of no excuse.  He had handled the appeal to the TCAB and the leave application within time limit.  He must be aware that there must be deadlines.

10.  While the delay was short, the important issue at this stage is the merits of the intended judicial review [2]. I proceed to consider the merits of the intended judicial review.

11.  The evidence was that in April 2013, the applicant’s grandfather divided his farmland among his 3 sons.  It was pure chance that the applicant’s father got the best portion.  His uncle was not happy about the allotment.  The division of the land was not properly documented and registered.  In May 2013, his uncle and others attacked the applicant and his father.  They threatened to kill the applicant.  The police refused to investigate.  On the contrary, the police accused the applicant and his father of using the land without permission.  In June 2013, the applicant’s father fled to Dubai.  In April 2014, the applicant left India for Hong Kong.  He encountered no problem with the Indian police at the airport.

12.  The Director found that the ill-treatment on the applicant and his father did not reach ‘a minimum level of severity’.  The COI indicated reasonable State protection.  There were viable options for relocation.  It was a private dispute and no official involvement.  The Director rejected his claim on all grounds.

13.  The adjudicator found that there was no involvement or acquiescence by any public official.  There were reasonable State protection and opportunities of reasonable relocation.  There was no evidence of any charge or court summons against the applicant.  The adjudicator did not accept there was substantial ground to support a real risk under BOR 3 and BOR 2.  The dispute was personal.  It was not for any of the reasons under the Refugee Convention.

14.  In my judgment, there is no merit in the intended judicial review.  In the circumstances, I dismiss his application for extension of time to appeal.