Re Chopra Amit

HCAL 1794/2018

[2021] HKCFI 1778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1794 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 20/5/1981. He came to Hong Kong on 30/11/2004 as a visitor. He did not turn up for departure to India on 2/9/2005 pursuant to a removal order. He overstayed until he was arrested on 12/12/2007 for dealing with illicit fuel. He lodged a torture claim on 17/12/2007. The Director rejected his torture claim on 20/8/2013.

2.While on recognizance, he was arrested on 11/9/2012 for illegal employment.  He was arrested again on 4/11/2014 for using another’s identity card.[1]

3.On 17/9/2013, he lodged the non-refoulement claim in this case.  He claimed that he was unable to repay the debt owed to a money lender.  His life would be in danger if he returned to India.

4.The Director rejected his non-refoulement claim on 4/3/2016 and 29/12/2017.[2] The applicant appealed to the TCAB.  The appeal was dismissed on 17/8/2018.

5.On 31/8/2018, the applicant applied for leave for judicial review of the decisions of the TCAB and the Director.  He complained that he had no legal assistance.  He did not understand English or Chinese.  He did not understand the correspondence and the procedures of assessment under the USM.

6.Deputy Judge Lung fixed a hearing on 21/11/2019.  The applicant did not attend.  The Judge considered the leave application on paper.

7.Deputy Judge Lung stressed that the applicant was not entitled to free legal representation at every stage of the proceedings.  The TCAB and the Director were entitled to determine the merits of the claim according to evidence.  It was not for the Court of First Instance to usurp that role.  Deputy Judge Lung pointed out that the TCAB had considered the applicant’s evidence.  The Judge concluded that it was not reasonably arguable.  He refused leave for judicial review on 30/6/2020.

8.The applicant filed a summons on 6/11/2020 for extension of time to appeal against the decision of Deputy Judge Lung.  He was about 3½ months out of time.

9.In his affirmation in support of the application for extension of time, the applicant indicated that he did not receive the decision of Deputy Judge Lung.  He only knew about the decision when he reported to the Immigration Department.

10.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.[3]

11.The applicant was out of time for about 3½ months.  It was substantial delay.  He claimed 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 30/6/2020. It was sent to an address at Man Wah Building, Man Wai Street, Kowloon.  This was the most updated address filed by the applicant around September 2019.  There was no return of mail.

12.The notice of hearing before Deputy Judge Lung was sent to the same address on 23/10/2019 by ordinary and registered mail.  The notice sent through ordinary mail was returned to the High Court on 3/2/2020.  It was marked ‘no such person’.  The notice sent through registered mail was returned to sender marked ‘unclaimed’.

13.In the summons of the present application, the applicant used another address at Man Fai Building, Man Ying Street.  However, he had not updated this address with the court.

14.The Court of Appeal has reiterated that it is the duty of a litigant to provide the Court with an up-dated address.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant.[4]  In my view, the applicant must bear the consequence of failing to update his address with this court.

15.As to the merits of the claim.  The factual basis is as follows.  The applicant was persuaded by an agent to borrow a loan of 300,000 Indian Rupees from a money lender.  It was the fee for the agent to take him abroad for work. After taking him to Hong Kong via Thailand and China, the agent disappeared.  He was unable to repay the loan.  The money lender harassed his family and damaged their properties in India.  His mother reported to the police who took no action.  He could not relocate in India.  The money lender would be able to locate him anywhere in India.

16.The Director found that the dispute was a private matter.  There was no physical violence on the applicant.  The ill-treatment on his family members did not reach ‘a minimum level of severity’.  The COI indicated reasonable State protection.  There were viable options for relocation.  The Director rejected his claim.

17.The applicant attended the TCAB hearing.  The adjudicator found the applicant unreliable based on the following:[5]

a.  The story of the applicant was too vague to attach evidential weight.  He did not know the name of the money lender.  He was unable to remember the date of making the loan.  He was uncertain about the time of threats and harassment.

b.  He asserted that the loan agreement was in India however he was unable to produce a copy.

c.  He heard about the damage of family properties about 1 month after he arrived at Hong Kong which was about 14/12/2004.  He also said his mother told him about the incident on 1/12/2004 or 2/12/2004.  He could not explain the inconsistency.

d.  He only raised a torture claim in 2007 after his application for refugee status was rejected in 2006.  In fact, he had already learned about the threats from the money lender in 2005.

e.  He absconded from the Immigration Department for over two years.[6]  He repeatedly engaged in illegal work while on recognizance.[7]  These undermined his credibility.

18.The adjudicator also found that there were reasonable relocation options to cities such as Delhi, Kolkata and Mumbai.  It would be very difficult for the money lender to locate him.

19.Given the above, I agree with the decisions of the TCAB and 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.

The applicant was unrepresented.