Re Rahul

HCAL 2475/2018

[2022] HKCFI 213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2475 OF 2018

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Before:  Deputy High Court Judge P. Li in Chambers

Date of Decision:  25 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 6/3/2016 as a visitor. He overstayed and surrendered to the Immigration Department on 22/3/2016. He lodged the non-refoulement claim in this case on 10/8/2016 and 2/9/2016.

2.He would be in danger if returned to India as he intended to marry a girl from a rich family. His family objected to the marriage and threatened to kill him.

3.He planned to marry the girl after she completed her university studies in 2014. Her father objected. Her father and brothers came to his home in early 2014. They assaulted him and threatened to kill him. In March 2015, he was again assaulted by her brothers. He was injured seriously and hospitalized for a week. He was in fear and moved to Delhi. He worked as a salesman. He was attacked twice by strangers in Delhi. He suspected they were relatives of the girl. In March 2016, he left India for Hong Kong on the advice of her father.

4.His non-refoulement claim was rejected on 21/11/2017 by the Director. The appeal was dismissed by the TCAB on 1/11/2018.

5.The adjudicator found that there was no real risk of harm. He told the adjudicator that the girl was no longer interested in him. He had a Filipino girlfriend in Hong Kong. He was not interested in the girl. There would not be any danger in India. He was happy to return to India.

6.On 6/11/2018, the applicant filed the leave application for judicial review of the TCAB decision.

7.In the hearing held on 22/6/2021 before this court, he indicated that a friend in India told him in 2020 that the girl was still interested in him. He had broken up with his girlfriend in Hong Kong. This was contrary to his admission to the TCAB.

8.The applicant had no update initially. He only retracted his admission to the TCAB when this court drew his attention to the admission. In his letter dated 20/1/2021 setting out the grounds of relief for the leave application, he mentioned nothing about this basis of retraction. By that time, he should have known about it already. He did not contact the girl to ascertain her attitude. He just accepted his friend’s message. In the TCAB hearing in 2018, both the girl and the applicant had no interest in each other. Two years later in 2020, the girl rekindled her interest in him. In the absence of any explanation, the change of attitude defied common sense. His retraction appeared more dubious when he indicated to this court that he had broken up with his girlfriend in Hong Kong.

9.The adjudicator accepted the applicant’s evidence then. In my view, there was no longer any real risk of harm as the applicant admitted. It was a proper ground to dismiss the appeal.

10.As to the other complaints, the allegations did not occur as the adjudicator needed not consider the merits of the claim. These complaints appeared irrelevant and misleading.

11.According to the adjudicator, the factual basis of the claim before the TCAB was substantially the same as that found by the Director.[1] In my view, had the TCAB considered those facts, the claim would inevitably be dismissed.

12.This court agreed with the decision of the adjudicator. The applicant had genuinely admitted to the TCAB that there was no risk of harm in India. There was no error of law or procedure. The TCAB decision was reasonable. Leave was refused on 26/8/2021.

13.The applicant filed a summons on 16/9/2021 for extension of time to appeal against the decision of this court. He was out of time by one week. In his affirmation, the applicant asserted that he had not received the decision of this court until 15/9/2021.

14.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]

15.According to the court record, the decision was sent to his last known address on 26/8/2021. There was no return of mail. The applicant had not explained further about the late receipt. It was most unusual that the decision took 20 days to reach him. At this stage, the prospect of the intended judicial review is also an important factor.

16.As set out in paragraph 5 above, the adjudicator was right to accept the admission of the applicant. I agree with the decision of the TCAB. In my judgment, there is no merit in the intended judicial review.

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

The applicant was unrepresented.