RE MALAIRAJ SATHIYANDIRAN

HCAL 2943/2018

[2021] HKCFI 372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2943 OF 2018

_____________________

_____________________

_________________

D E C I S I O N

_________________

1.  The applicant is from India[1]. He came to Hong Kong on 11/4/2016. He surrendered to the Immigration Department on 27/4/2016[2]. He filed the non-refoulement claim in this case on 3/6/2016.

2.  He feared that if he returned to India, he might be harmed or killed by the family of his girlfriend who belonged to a higher caste.  They disapproved the relationship.  The father of his girlfriend was a member of the All India Anna Diravida Munetra Kalagam Party (“ADK”).

3.  On 27/9/2017, the Director rejected his non-refoulement claim on all grounds.  The applicant filed an appeal to the TCAB on 10/10/2017.

4.  On 20/7/2018, the applicant attended an oral hearing before the TCAB. The adjudicator refused the appeal on 23/11/2018 on all grounds.

5.  On 21/12/2018, the applicant applied for leave for judicial review against the decisions of the Director and the TCAB.  He pointed out in his supporting affirmation that he had no legal representation in the TCAB proceedings.  The decision of the TCAB was not translated.  He could not understand.  The TCAB did not address the issues raised before the Director.  The high standard of fairness was not attained.

6.  Deputy Judge Lung fixed a hearing on 24/7/2019.  According to the call-1 Form, the applicant confirmed that he was allowed to present his case fully before the Director and the TCAB.  He understood both decisions as he was assisted by the DLS and his friend[3].

7.  Deputy Judge Lung found that there was no exceptional reason to judicial review the decision of the Director[4]. The statutory structure indicated that the decision of the TCAB would supersede the decision of the Director[5]. Given that the TCAB rejected the evidence of the applicant, there was no factual basis for the applicant’s claim.  The Judge concluded that there was no reasonable prospect of success in the intended judicial review.  Leave for judicial review was refused on 23/1/2020.

8.  The applicant filed a summons on 29/9/2020 for extension of time to appeal against the decision of Deputy Judge Lung[6]. He was about 7½ months out of time.

9.  In his affirmation in support of the application for extension of time, the applicant indicated that he was illiterate and unrepresented.  He was not aware of the 14-day-requirement for appeal.  Deputy Judge Lung did not allow him to clarify the situation in India. He did not receive the decision from the court[7].

10.  In considering whether to extend the time for appeal, 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[8].

11.  On 15/12/2020 during the oral hearing before this court, the applicant[9] explained that he was imprisoned for 10 months in December 2019 for the offence of taking employment without the authority of the Director.  He was detained in CIC after serving the sentence.  He only knew about the decision from Deputy Judge Lung about 10/9/2020 in CIC.  The decision was sent to his home[10].

12.  The applicant was out of time for about 7½ months.  He claimed in his affirmation that he did not receive the decision of Deputy Judge Lung. According to the court record, that decision had already been sent to the applicant on 23/1/2020.  It was sent to his last known address[11].

13.  Assuming what the applicant told this court was accurate, he was imprisoned since December 2019 for 10 months.  This was probably the reason that he did not know about the decision of Deputy Judge Lung. That decision was sent to his home address on 23/1/2020.  However, this obvious reason was not mentioned in his affirmation.  There was nothing to show the details of his imprisonment.

14.  Instead, he claimed in the affirmation that he was illiterate and unrepresented, he did not know the 14-day-appeal period.  According to the decision of the TCAB, the applicant completed his undergraduate degree in 2009[12]. The claim of illiteracy in his affirmation appears to be a gross exaggeration.

15.  While this court doubted the explanation above, the paramount importance in this application is the merits of the intended judicial review[13].

16.  In support of his non-refoulement claim, the applicant alleged that he had developed a secret relationship with his girlfriend during the university days.  The family of his girlfriend[14] disapproved the relationship as they were from a higher caste. In January 2011, the applicant was threatened and assaulted by the family members of his girlfriend.  He was forced to sign an agreement undertaking not to contact her again.  He then left home and worked in another town (Kovai).  He was generally safe in Kovai although the family members of his girlfriend had threatened him through his family occasionally.  The applicant left India in December 2015 and travelled between Thailand, Vietnam, Cambodia and China to avoid his problem.  He however returned to India in early March 2016 determined to settle the problem. Another fight between him and a member of his girlfriend’s family occurred on 20/3/2016.  He finally decided to leave India on 23/3/2016[15].

17.  The applicant attended an oral hearing before the TCAB.  The adjudicator found that the applicant was not a credible witness.  The gist is as follows[16]:

a. The applicant claimed in his NCF that the father of his girlfriend was the party secretary of ADK.  This strong connection with the ADK party was one of the main sources of his fear.  However, in the oral hearing, he said the father of his girlfriend was a member of the legislative assembly (“MLA”). The adjudicator was not satisfied with his explanation that by MLA he meant the party secretary of ADK.  It was due to an error of interpretation when the NCF was compiled.

b. The applicant submitted a letter sent by the legal representative of his girlfriend’s family falsely accusing him of assault and kidnapping.  It was written in English instead of Tamil.  The adjudicator pointed out that the English was so poor that it was unlikely to be written by a lawyer.  His girlfriend was wrongly named as Miss Soniya instead of Miss Diviya.  The letter was undated and misinterpreted s.357 of the Indian Criminal Procedure Code.

c. The adjudicator performed a search on the website of the bar council of Tamil Nadu.  There was no such advocate.  A search by the address and telephone number revealed no such advocate.

d. The applicant was safe in Kovai for over 4 years.  This showed that his girlfriend’s family was unable to find him or not interested in him.

e. The applicant was unable to explain clearly how he maintained his relationship without seeing each other for 2 years.

f. The applicant was unable to give satisfactory explanation why he returned to India after travelling around Thailand, Vietnam, Cambodia and China for a few months until March 2016.  The adjudicator rejected his reasons namely that no one advised him to seek protection and that he had no money.

18.  Given the above, the adjudicator rejected the factual basis of the applicant’s claim.  The adjudicator found no real risk of harm from his girlfriend’s family or ADK if he returned to India.  The adjudicator dismissed the claim on all grounds.

19.  I agree with the decision of Deputy Judge Lung.  There is no merit in the intended judicial review.  In the circumstances, I dismiss his application for extension of time to appeal.