Case Document

100%Judiciary

HCAL 2990/2018

[2022] HKCFI 37

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2990 OF 2018

_____________________

Re:

DELAI TAITUSI CAMAIVUNA

Applicant

_____________________

Before:

Deputy High Court Judge P. Li in Chambers

Date of Decision:

11 January 2022

_____________________

D E C I S I O N

_____________________

1.The applicant is from Fiji. He came to Hong Kong on 28/12/2012. He was allowed to stay in Hong Kong until 11/4/2013. He surrendered to the Immigration Department on 17/4/2013. He lodged the non-refoulement claim in this case on 27/2/2014. [1]

2.He was one of leaders of SDL[2] in a suburb of Suva City. In 2000, he joined a protest against the government. The government sent soldiers to crack down the protest. Many protesters were arrested and tortured. He and others led a plot to kill the commander of the military force. It was not successful. He escaped to Tailevu. He did not sustain any injury during this incident.

3.In 2006, after a coup, the military government started arresting SDL members. He was not arrested or ill-treated. Around 2012, he paid an agent to arrange him to go to South Africa but he was stuck in Hong Kong. The military government won the election in 2015. It was not safe to return to Fiji.

4.The Director rejected his non-refoulement claim on 26/1/2017. His appeal to the TCAB was dismissed on 8/12/2017.

5.The adjudicator pointed out that the applicant was not reliable. He was not targeted by the government. There was a lapse of 17 years since the incident in 2000, it was unlikely that his fear would materialize. He did not participate in the coup in 2006. He was then with his father and not active in SDL activities.

6.He could leave Fiji though he was on the stop list as his friends helped him to obtain a passport. He also knew the supervisor at the airport. The adjudicator doubted this explanation. The applicant could not supply any detail about the protest in 2000. He was not in a leading role. Apparently, he was a fugitive from justice in relation to the protest in 2000. He was not entitled to non-refoulement protection.

7.On 27/12/2018, the applicant applied for leave for judicial review of the decision of the TCAB. He was out of time for more than 9½ months. He disagreed with the TCAB decision. He did not want to return to Fiji. This court dealt with his application on paper.

8.The adjudicator had analyzed the applicant’s evidence in detail. The evidence lacked details. This undermined his credibility. I agree with the findings of the adjudicator. There was no error of law or procedure. The decision of the TCAB is reasonable.

9.The applicant was out of time in filing the leave application by more than 9½ months. He should have applied for extension of time. He did not provide any explanation for the delay. In considering whether there is good reason for the delay, I have considered the length of the delay, the reasons for the delay, the merits of the substantive application and the prejudice to the putative respondent if extension was granted. [3]

10.There was no explanation for the delay. The intended judicial review was of no merits. I refused to extend time for the leave application. I also refused leave for the intended judicial review on 27/7/2021.

11.The applicant filed a summons on 12/8/2021 for extension of time to appeal against the decision of this court. He was out of time for about 2 days.

12.In his affidavit, the applicant indicated that he did not receive the decision of this court within reasonable time.

13.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]

14.The delay was about 2 days. It was unclear when he received the decision. He did not explain the situation clearly. I have grave doubt about this reason.

15.As set out above, I agree with the decision of the TCAB. In my judgment, there is no merit in the intended judicial review. Having considered all factors, I refuse the application for extension of time to appeal.