Re Md Hasnain

HCAL 2988/2018

[2022] HKCFI 119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2988 OF 2018

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Before:  Deputy High Court Judge P. Li in Chambers

Date of Decision:  14 January 2022

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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 7/12/2014 as a visitor. He overstayed until he was arrested on 30/11/2016. He lodged the non-refoulement claim in this case on 25/2/2017 and 20/3/2017.

2.The basis of his claim was that he would be in danger if returned to India as he refused to quit INC to join BJP.[1] He was a volunteer of INC in his home area responsible for organizing functions. From February to August 2014, the BJP people had been threatening him to join them. They assaulted him seriously in May at his home. His parents were injured. He was hospitalized for 2 months. His family then moved to another town. In a subsequent incident, his father was allegedly killed. He was so scared that he came to Hong Kong in December 2014. He did not apply for protection until February 2017. He was scared and hid himself.

3.His non-refoulement claim was rejected on 27/2/2018 by the Director. The appeal was dismissed by the TCAB on 20/12/2018.

4.The adjudicator found that there were important inaccuracies in his evidence. He told the adjudicator that there was an election in 2014 for the West Bengal Legislative Assembly. That was the reason for the BJP people to force him to bring INC supporters to join them. However, according to the Election Commission of India, there was no such election. In fact, in both 2011 and 2016 elections, the BJP was not a political force in West Bengal. He gave the name of the INC candidate who was not in the record of the Election Commission. What he told the adjudicator about the incident in March 2014 was inconsistent with what he told the Director. The adjudicator concluded that the applicant was not credible.

5.On 27/12/2018, the applicant filed the leave application for judicial review of the decision of the TCAB.

6.This court agreed with the findings of the adjudicator. The applicant was not credible. There was no error of law or procedure. The TCAB decision was reasonable. Leave was refused on 22/7/2021.

7.The applicant filed a summons on 6/8/2021 for extension of time to appeal against the decision of this court. He was out of time by one day.

8.In his affirmation, the applicant asserted that he had no money to pay for the court fee for filing an appeal.

9.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.[2]

10.The delay was short. There was no mention of his effort to meet the deadline. Besides, the prospect of the intended judicial review is also an important factor at this stage.

11.As set out in paragraph 4-6 above, the adjudicator rejected the evidence as he concluded that the applicant was not credible. I agree with the decision of the TCAB. In my judgment, there is no merit in the intended judicial review.

12.Having considered all relevant factors, I refuse the application for extension of time to appeal.

The applicant was unrepresented.