Sl v. Kwan Betty

HCAL 247/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 247 OF 2015

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Before: Deputy High Court Judge Marlene Ng in Court

Date of Hearing: 15 August 2017

Date of Handing Down Judgment : 6 November 2017

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J U D G M E N T

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I.  Introduction

1.This is an application for leave to apply for judicial review pursuant to a Form 86 filed on 15 December 2015 (“Form 86”) against the decision by a member of the Torture Claims Appeal Board (“Board”) / Adjudicator of the Non-refoulement Claims Petition Office (“Adjudicator”) made on 24 April 2015 dismissing SL’s petition and confirming the decision of the Director of Immigration (“DOI”) made on 19 December 2014 (“DOI Decision”) refusing the application by SL for non-refoulement protection (“Adjudicator Decision”).

2.By the Form 86, SL sought inter alia (a) an order for extension of time under Order 53 rule 4(1) of the Rules of the High Court (“RHC”), and (b) an order of certiorari to bring up and quash the Adjudicator Decision. The Form 86 was supported by SL’s affirmation filed on 15 December 2015 (“SL 1^st Aff”). At that time, SL was legally represented.

3.On 14 March 2016, I directed inter alia that the application for leave to apply for judicial review together with the application for extension of time to apply for such leave be adjourned to an inter partes oral hearing to be attended by SL and DOI as the putative interested party (and by the Adjudicator as the putative respondent if she so desired).

4.On 9 December 2016, SL by his solicitors filed an ex parte summons for leave to amend the Form 86 in the manner marked in red as per the draft attached to the summons (“Summons”). The Summons was supported by SL’s 2^nd affirmation filed on 9 December 2016 (“SL 2^nd Aff”).

5.SL was legally aided for his application for leave to apply for judicial review and application for an extension of time to apply for such leave. Legal aid for SL was discharged on 7 August 2017.

6.The hearing of SL’s application for leave to apply for judicial review and his application for extension of time to apply for such leave came before me on 15 August 2017 (“Hearing”). SL was about 40 minutes late for the hearing. He claimed he was unsure of the address of the court venue and hence attended a wrong court venue in Wanchai before discovering his mistake. He then made his way to the correct venue, and was therefore late.

7.When SL turned up for the Hearing, Ms Kao, government counsel for DOI as putative interested party, was in the course of making submissions to this court in SL’s absence. Since SL appeared at the hearing, I invited SL to make submissions to the court in respect of his application before hearing further from Ms Kao. Upon query by the court, SL expressly declined to rely on the written skeleton submissions dated 9 December 2016 by his former assigned counsel Ms Herbert. For the avoidance of doubt, I do not rely on the oral submissions of Ms Kao made to this court prior to SL turning up for the Hearing.

II.  Procedural history

8.SL fled India on 22 September 2014, and arrived at Hong Kong by ferry from Macau on 6 October 2014. He was refused permission to land on 7 October 2014.

9.SL by written representation dated 6 October 2014 made a non-refoulement claim in which he stated he would be at risk of harm if returned to India. SL with the assistance of his legal representative from the duty lawyer service completed a non-refoulement claim form dated 3 November 2014 (“NCF”),[1] and attended 2 screening interviews on 28 November 2014 (“1^st Interview”) and 12 December 2014 (“2^nd Interview”) in the presence of his legal representative and a Hindi interpreter.

10.SL was assessed on the following applicable grounds, ie risk of torture as defined in Part VIIC of the Immigration Ordinance Cap 115 (“IO”) (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance Cap 383 (“BORO”) (“BOR3 Risk”), and risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

11.By the DOI Decision dated 19 November 2014, the DOI rejected SL’s non-refoulement claim. On 27 December 2014, SL lodged an appeal/petition against the DOI Decision. An oral hearing was scheduled on 9 March 2015 before the Adjudicator (“Adjudicator Hearing”). SL failed to appear at the Adjudicator Hearing. The secretariat of the Board made telephone calls to SL, but the calls never connected. On the same day, the Board sent a letter to SL by post requesting written explanation of his failure to attend the Adjudicator Hearing together with any documentary evidence supporting such explanation within 7 days. On 10 March 2015, SL personally submitted a medical certificate from the accident and emergency department (“AED”) of Tuen Mun Hospital (“TMH”) dated 9 March 2015 (“Med Cert”) with a letter stating “Sir, sorry yesterday I have headache, medical certificate” (“2^nd Explanation”). As seen in paragraphs 41-55 below, the Adjudicator was not satisfied with SL’s explanation, and proceeded with the determination of SL’s appeal/petition. By the Adjudicator Decision dated 24 April 2015, the Adjudicator dismissed such appeal/petition, and confirmed the DOI Decision.

III. SL’s claim

12.SL was an Indian national. He was born in 1973 in a village in District Jhunjhunu, Rajasthan, India (“Village”), and lived there with his parents, wife and 3 children before he left India. SL received formal education for 9 years since 1979, and last attended Class 10 in 1989. In 1990 he started to work at his father’s farmlands in the Village, and attended to farming, cattle raising and selling crops at the market. SL’s father (“Father”) was also a farmer, but after his retirement SL and his brother took care of the Father’s farmlands. The Father helped SL financially when needed.

13.According to the DOI’s records, SL came to Hong Kong on 20 March 2006 and were permitted to stay in Hong Kong as a visitor until 3 April 2006. On 28 March 2006, SL sought asylum at the United Nations High Commissioner for Refugees, but he withdrew his application on 23 May 2006. On 30 May 2006, SL surrendered to the Immigration Department as he wanted to go back to India. He eventually departed Hong Kong for India on 3 June 2006.

14.SL claimed that in India there was a political party called “Congress Party” (“CP”) which, according to SL in the 1^st Interview, was the same as the “Indian National Congress” (“INC”). In this Judgment, CP and INC are used interchangeably. At that time, the CP was the ruling party of Rajasthan, and had been in power in that state for a long time. The opposition party was the Bhartiya Jarta Party (“BJP”) which had been competing with the CP in elections for years. SL claimed the CP used to help the poor and needy, and to devote much effort to develop public affairs in Rajasthan as well as welfare of the people.

15.SL said he and his family members supported the CP for a long time even though they did not hold any position in the CP until 2008. SL claimed to be famous in the Village for serving the local community by providing voluntary services to those in need. So when an office of the CP was established in the Village, the villagers proposed SL to be the “Block President” of the Village for the CP in 2008.[2] Together with 10‑12 subordinates, SL did a lot of work for the welfare of the local people. At the material time, 200 projects were launched,[3] which SL said benefited many in the local community. SL did not have any direct confrontation with any BJP member before, and did not know the BJP members who used to go to different villages for campaign. But he knew they were not pleased about him taking a leading role and working hard for the CP. The BJP being the opposition party opposed SL during discussions in public conferences, but the SL did not have arguments with them when he was “Block President”.

16.SL said when his 5-year tenure as “Block President” was about to come to an end in/about March 2014, there was a general election for members of parliament for Rajasthan (“Election”). SL participated in many rallies to promote the CP to get more votes in the Election, and he (together with other members of the CP) went from door-to-door to visit local people to encourage them to vote for the CP. But, according to SL, the BJP had rich and influential members who spent a lot of money on getting votes for their party and who made false promises to the public that they would give many jobs to the unemployed in the area and that they would remove the qualifying examination to lower the professional threshold for entering the teaching profession. These promises attracted support from the poor/illiterate who did not understand these were false promises, so they cast their vote for the BJP who eventually won the Election.

17.After the Election, SL continued to work as “Block President” but he did not get help from the BJP, so he could not help the villagers. As a result of the enmity that had built up between SL and the BJP leaders/supporters when he worked for the CP, the BJP members started to take revenge on SL after the Election. They would use foul language on SL whenever they met him, saying “[we] had seen you working for a long time and now we would not spare you”.

18.SL said at/about 4pm on 5 June 2014, whilst he was on his way to the market near the Village to buy some agricultural utilities for his farms, 2 persons (whom SL had never seen before) riding on motor‑bike suddenly stopped in front of him and started to slap him with bare hands. They said he was always taking part in the CP, and they would take revenge on him as he had lost his power. SL did not fight back, but he shouted loudly for help. Some passers-by stopped to help, and these 2 persons left on their motor-bike. The incident lasted for about 10 minutes. SL did not seek medical treatment or report to the police as he did not sustain any injury. This is referred to below as the “Slapping Incident”.

19.SL said that at/about 9am on 20 July 2014 he was on the way to his farmlands in the Village when he was surrounded by 4-5 BJP persons[4] from the Village (but he did not know their names). They held bamboo sticks, and said they would take revenge on SL. SL was scared as he was alone with nothing to protect himself. They started to beat SL all over his body with bamboo sticks for 5 minutes until other people who worked on nearby farms heard SL’s screams and came towards them. Before they left, the attackers verbally threated SL they would not let him go the next time. SL said he sustained bruises all over his body and swelling on his back/legs. He was taken by some villagers to V Clinic that was about 10-15 minutes’ walk from his home. The Village doctor applied ointment and gave some painkillers. SL rested at home for 4 days before recovery. This is referred below as the “Beating Incident”.

20.The following morning SL and his brother went to C Police Station about 1km away from SL’s home. SL claimed the police would not listen to him as they wanted the names/addresses of the attackers which SL did not know. Eventually the police told SL they would look into the matter and investigate, but SL suspected they were unwilling to take action against any BJP member since the BJP was in power at that time.

21.SL said at/about 9-10pm on 8 August 2014 a jeep suddenly stopped outside SL’s house when he and his family members were at home. SL saw through the window that 5-6 persons came out of the jeep shouting his name, but he could not identify them. They asked SL to come out and fired some bullets into the air (some of which hit the metal gate outside SL’s house). SL’s family members were very scared and locked themselves in a room. SL managed to escape from the backdoor and went to the farmlands. The shooters were unable to find him as it was dark outside. SL’s family members saw some neighbours came out to see what happened, and the shooters left in their jeep. SL who was still terrified returned to his home later that night. This is referred below as the “Shooting Incident”.

22.The following morning, SL went to C Police Station to lodge a complaint about the Shooting Incident as he was worried the shooters might come again to harm him. The police took a report of his complaint, and told him they would investigate. But SL claimed he knew no action was ever taken. At that time BJP was in power and had influence/control over the police and local authorities. SL believed the BJP put pressure on the police so they would not take action against them. SL claimed the people of the CP would not help their supporters as they were not in power and were scared, and even though he was a CP member nobody higher in the hierarchy was willing to help him since he was living in a village. So SL did not seek assistance from CP and did not report to higher authorities or other police stations.

23.After the Shooting Incident, SL received some threatening telephone calls from some unknown persons. After the 1^st threatening call on 10/11 August 2014, there were such calls each day. In total there were 4-5 such calls threatening SL that he would not be spared even if he reported to the police, and the police would not do anything to protect him. SL and his family members were scared of such threatening calls, and thought it was no longer safe for SL to live in the Village anymore. This is referred below as the “Threatening Calls”.

24.SL claimed he did not report the Threatening Calls to the police because the police did not take action on his reports in relation to the Beating/Shooting Incidents. SL then made a lot of telephone calls to his relatives in different parts of India to tell them of his plight to see whether they would accommodate him to avoid danger, but none of them was willing to give him shelter.

25.SL said about 7-8 days after the Threatening Calls he went to stay at his relatives’ houses in 2-3 villages in H which was about 30-35 km away from the Village. SL did not encounter any problem during his stay at H. At the end of August 2014, SL met a relative of a villager of the Village (“R”) who came to H to visit someone. R who had been to Hong Kong before and knew about the protection system in Hong Kong suggested SL to go to Hong Kong to seek protection. SL immediately went back to the Village to discuss with his family, who agreed he should leave for Hong Kong as they were worried about his safety in India. SL then returned to H.

26.In early September 2014, SL decided to leave for Hong Kong. He had already applied for his passport after the CP lost the Election in/about March 2014. SL made the travel arrangements, and it took him a few days to get the money ready. R told SL to get a visa for China because he might not be able to gain entry to Hong Kong from India. On 8/9 September 2014, SL moved to New Delhi to obtain such visa. He claimed he did not encounter any problem in New Delhi as he stayed inside his relatives’ house.

27.On 22 September 2014, SL departed India through the airport for Macau. He had no difficulty passing through Indian immigration control. SL arrived in Macau on the same day, and stayed there for 6 days. When he was in Macau, SL called his family and they said his life was not safe in India. On 28 September 2014, SL went to China, and stayed there for 5 days. He tried to gain entry to Hong Kong 4 times but was refused. He went back to Macau on 3 October 2014. Although he was safe in China and Macau, SL claimed he did not know anything about protection there, so he did not seek protection for his problem in India.

28.On 6 October 2014 SL came to Hong Kong by ferry, and on 7 October 2014 was refused permission to land in Hong Kong. He was detained at Castle Peak Immigration Centre after his arrival in Hong Kong, so he did not have contact with his family afterwards and had no idea on the situation in India. SL was subsequently released on own recognizance.

29.SL claimed he would be harmed or even killed by the people of the BJP if he were returned to India. He said he could not seek assistance from the local authorities, which was under the influence of the BJP, if he returned to India because the BJP was still in power in the central government and in Rajasthan. SL believed that even if he reported his fears to the local authorities they would not take any action to protect him as his problems were caused by the BJP. Further, SL claimed that as the BJP was the ruling party and had strong connections all over the country, the leaders of the BJP could locate him anywhere, so he could not relocate within India. SL considered he was not safe in New Delhi even though he did not have any problem during his stay there, but that was because he was hiding in his relatives’ house and did not go out.

30.In the 1^st Interview, SL said he could not relocate to other cities even where the CP was in power (such as Shimla in the State of Himachal Pradesh) because he did not know anyone there, and the BJP had connections all over India. SL claimed he was not safe as he was still a CP member and “Block President” of the Village. Although the CP had become weak and the BJP was in power, SL claimed he was still an important person in the CP who had done good work for the party, so the people of the BJP would still be interested to locate/harm him upon his return to India. But in the 2^nd Interview, SL changed to say he was not a member but only a supporter of the CP, but he feared the people of the BJP would harm him upon his return to India because he was a main supporter in the Village.

IV.  DOI Decision

31.After consideration, the DOI rejected SL’s non-refoulement claim.

32.First, taking into account the low intensity/frequency of past ill-treatment from some unknown people and/or some people of the BJP, the absence of harm to SL’s family members, the completion of the Election, the DOI did not accept some unknown persons and/or some people of the BJP would still be interested to inflict harm or threats on SL upon his return to India:

(a) The low intensity/frequency of ill-treatment from the people of the BJP in the past was indicative of a small future risk of harm upon SL’s return to India. The BJP became the ruling party of Rajasthan in April 2014, and some BJP members used foul language on SL who later suffered the Slapping, Beating and Shooting Incidents. For all these incidents, SL did not know the identities of the attackers and had not seen them before. SL believed they came from the BJP as some of them dressed like BJP members. But the DOI found (i) there was no sufficient proof to show the purposes of these people were connected with any state interest or policy, and (ii) the problems SL faced in India were purely personal disputes between him and some unknown people and/or some people of the BJP.

(b) SL did not sustain any injury and did not seek medical treatment for the Slapping Incident. After the Beating Incident, he received some ointment and painkillers, and needed to rest at home for 4 days. No one was injured in the Shooting Incident. After SL received the Threatening Calls, he fled from the Village. The DOI considered the nature, duration and effect of the threats/harm on SL, and regarded the ill-treatment inflicted on him did not attain a minimum level of severity.

(c) SL claimed he would be harmed by the people of the BJP upon his return to India. But SL’s problem with some people of the BJP only started after the BJP came into power in Rajasthan. SL did not have any problem in participating in rallies and in encouraging local people to vote for the CP. Further, he and his family were supporters of the CP for a long time, but he did not have direct confrontation with BJP members before, and BJP members would only oppose him during discussions in public conferences and he had no further argument with them. SL’s family members were not at risk of harm from the people of the BJP. The DOI considered there was nothing to indicate the people of the BJP had great hatred of SL for his political participation.

(d) SL did not know who the attackers were for all the incidents, and he had not seen them before although he believed they were from the BJP as some of them dressed like BJP members. The DOI considered these individual incidents might not be related to one another, and there was insufficient evidence to show SL was targeted by the people of the BJP. Even if the attacks/threats SL experienced were true and some BJP members/supporters were involved, the DOI did not accept they had a real intention to further/again harm SL. After the Beating Incident, SL was safe at home for his recovery. After the Shooting incident, he was safe to return home at night and continued to live there for a period with his family. There were lots of opportunities for the people of the BJP to harm SL, and they would not have given the Threatening Calls if he were targeted. SL did not encounter any problem with the BJP during his stay at H, and he was able to return to his home once to have discussion with his family. SL was free to move around in New Delhi to make travel arrangements for his trip to Hong Kong. The DOI disagreed SL was an important person at the CP since he was neither a member nor leader and did not hold any post. The DOI concluded there was no sufficient evidence that some unknown persons and/or some people of the BJP had real intention to harm SL again after the last attacks and incidents.

33.The DOI also considered the availability of state protection further lowered/negated the level of risk:

(a) SL did not recognise his attackers and had not seen them before. Although he believed they came from the BJP as some of them were dressed like BJP members, there was no indication these unknown persons and/or some people of the BJP were acting in official capacities when they harmed/ threatened SL. There was no sufficient evidence to substantiate that the BJP supporters or people who had harmed/threatened SL were government officials. The misbehaviour of some unknown people and/or some people of the BJP (even if genuine) could not be treated as acts of the Indian authorities or any person acting in an official capacity.

(b) SL and his family members had never been accused, charged, interrogated, arrested, detained or imprisoned in India. SL was able to use his own passport to leave India in September 2014, and he did not encounter any problem at the Indian immigration control. The DOI considered SL was not a target of the Indian police or government.

(c) SL complained the Indian police did not take action despite his reports, and he suspected they were unwilling to take action against any BJP member since the BJP was in power, so the Indian authorities could not protect him if he returned to India. The DOI considered these assertions by SL in relation to the effectiveness/efficiency of the police in the context of country of origin information (“COI”). In paragraph 15(c)(i)-(iii) of the DOI Decision, the DOI referred to COI which corroborated SL’s assertions, but paragraph 15(c)(iv)-viii) of the DOI Decision indicated there was also COI that showed (1) the Indian government had put measures in place to improve the effectiveness of the police and to monitor its conduct, and (2) there were alternative avenues to seek protection in India. The DOI considered there was reasonable state protection available to SL as the Indian police/government had all along taken steps against acts of abuse by law offenders including those who belonged to government officials and ruling party. SL chose not to report the Slapping Incident and Threatening Calls to the Indian police, and thought no action would be taken as the police had taken no action in relation to the Beating/ Shooting Incidents. But actually the police had noted down SL’s complaints and promised to investigate even though SL was unable to provide the identities of the attackers and shooters. The DOI considered it was only SL’s speculation that the police was unwilling to take any action against BJP members since the BJP was in power at that time, and noted SL chose to flee from India without seeking assistance from the police or other authorities in India. The DOI concluded there was nothing in the COI to indicate reasonable state protection would not be available to SL if he returned to India.

34.Further, the DOI considered internal relocation was available and reasonable, which further lowered or negated the perceived risk:

(a) Internal relocation was permissible under Indian law. India had a population of more than 1.2 billion and land area of more than 2.9 million sq km. SL had many options for relocation in India, and the chance of the unknown persons and/or some people of the BJP successfully locating him among such a large and densely populated country if he returned to India would be minimal. Although SL claimed he would not be safe in New Delhi where he hid in his relatives’ house and did not go out, the fact remained he had relatives there and had not encountered any problem when he stayed there. Bearing in mind that SL’s claimed fear from those unknown persons and/or some people of the BJP did not involve official capacity, there was no fact to suggest they would have influence and resource spreading over the whole country for the purpose of locating SL. Indeed, more than 22.6 million people lived in New Delhi, and the DOI considered those unknown persons and/or some people of the BJP could hardly have found SL out given the large population.

(b) Further, being an able-bodied adult of 41 years who had attained Class 10, worked as a farmer for more than 20 years, and possessed working experience in a non-government organisation, the DOI considered it was not unduly harsh for him to relocate to another place in India to avoid the threats from his enemies.

35.As regards the Card referred to in footnote 2 above, SL said at the 1^st Interview that he was a member of the CP in 2008, the “Block President” post belonged to the CP, and he and his 10-12 subordinates were all volunteers working for the villagers. The Card was issued by AICSO referred to in footnote 2 above, which SL alleged to be an organisation of the CP. Although the BJP became the ruling party of Rajasthan after the Election and there was no longer any post of “Block President” in the Village after the Card expired on 1 January 2013, SL still considered himself as the “Block President” and continued to work in the Village after expiry of the validity of the Card. However, the official website of AICSO showed it was a non-government organisation with no indication it was an organisation of the CP. The INC official website did not show ACISO under its list of organisations.

36.Further, 2 news articles cited in paragraph 17 of the DOI Decision noted AICSO was a dubious organisation that enrolled members by collecting membership fee all over the districts and by using the theme “to work to bring Congress to power”, purportedly under the patronage of Sonia Gandhi, the patron of the All India Congress Committee (an official CP organisation, “AICC”). A representative of AICC said there was no such non-government organisation as AICSO under the AICC. Upon further enquiry at the 2^nd Interview, SL said he had no knowledge of these matters, and changed to say he was not a member but only a supporter of the CP. The DOI therefore considered the Card at most showed SL had worked as a “Block President” for a non-government organisation to help the villagers from 1 January 2011 to 1 January 2013. Given SL’s limited knowledge of his organisation/party, the DOI considered him to be an ordinary supporter of the CP as well as a low profile worker of AICSO, so the Card was unable to further support SL’s contention that he would be subjected to real/personal risk of ill-treatment or torture if he was returned to India.

37.Secondly, for the above reasons, the DOI did not accept SL would face a genuine and substantial risk of being subjected to ill‑treatment in relation to BOR 3 Risk if he returned to India.

38.Thirdly, the DOI accepted SL was an Indian national outside his country of nationality, but his feared ill-treatment did not fall within the definition of “persecution”. The DOI contended it was a private conflict that had nothing to do with any of the Convention reasons. Further, for the above reasons, the DOI assessed the risk of the feared ill‑treatment to be small, and did not accept SL’s fear was well-founded. The DOI considered SL’s case did not warrant non-refoulement protection for the Persecution Risk.

39.Fourthly, for the above reasons, the DOI assessed the claimed risk of ill-treatment (which SL said was torture) to be not real and foreseeable, and did not accept there were substantial grounds for believing SL would be subject to torture (particularly being harmed/ threatened by some unknown persons and/or some people of the BJP as claimed) if SL returned to India. The DOI took the view no severe pain or suffering within the definition of “torture” under section 37U(1) of the IO had been inflicted on SL in the past, which was indicative of the small if any future risk of “torture” as alleged.

40.In any event, the DOI considered there were no substantive grounds for believing further actions (if any) by some unknown persons and/or some people of the BJP would be inflicted by or at the instigation of or with the consent/acquiescence of a public official or other person acting in an official capacity. The problems between SL and some unknown persons and/or some people of the BJP were private conflicts. So upon taking into account relevant COI and the asserted primary facts of SL’s case, the DOI assessed that the Indian government did not know or have reasonable grounds to believe SL’s claimed threats/harms by some unknown persons and/or some people of the BJP, and if the Indian government knew or had reasonable grounds to believe threats/harms from such persons/people, the Indian government would have exercised due diligence to prevent, investigate and punish them. Further, SL had never been arrested, detained or imprisoned in India, and he was able to depart freely from India without problem, which showed he was not a target of the Indian government.

V.  Adjudicator Decision

41.On 27 December 2014, SL lodged his appeal/petition against the DOI Decision. The Adjudicator Hearing was fixed for 9 March 2015 at 10:00am on priority basis as SL was then still detained. The records of the secretariat of the Board showed they successfully contacted SL by telephone on 6 March 2015 to remind him of the scheduled hearing. But SL did not appear at the Adjudicator Hearing. The secretariat of the Board telephoned SL 5 times between 10-10:30am, but the calls never connected. On the same day a letter was sent to SL by post requesting written explanation of his failure to attend the Adjudicator Hearing together with any documentary evidence supporting such explanation. On 10 March 2015, SL attended the Board, gave a new mobile telephone number, and gave a new “address” even though it was merely a letter box number and not a proper address, and SL had written on that sheet “sir, sorry just day my appointment I am seek very legs very pain fool cannot Boking I am today” (“1^st Explanation”), but it was later crossed out by SL himself.

42.On 10 March 2015, SL personally submitted the Med Cert by TMH’s AED dated 9 March 2015 with the written 2^nd Explanation. The Adjudicator noted the Med Cert and 2^nd Explanation alleged SL suffered from headache on the day of the Adjudicator Hearing, but the reason given in the 1^st Explanation did not accord with the Med Cert. The doctor who issued the Med Cert did not recommend any sick leave or follow-up treatment.

43.The Adjudicator took into account the applicable law in section 15 of Schedule 1A of the IO (and also paragraph 11.3 of the Principles, Procedures and Practice Directions of the Board) and all circumstantial evidence relating to SL’s absence at the Adjudicator Hearing. The Adjudicator came to the view that had the doctor regarded the headache to be such that would have incapacitated SL, he would have awarded some sick leave. The absence of sick leave and follow-up tended to show the condition suffered at the material time was minor in nature. Further, failure to leave a proper address, the reference to painful legs and reference to a headache which the doctor must have regarded to be minor in nature led the Adjudicator to the conclusion that in all the circumstances the explanation provided was not satisfactory. Thus, the Adjudicator proceeded to consider SL’s appeal/petition under section 23(1) of schedule 1A of the IO.

44.The Adjudicator noted details of SL’s case were set out in the NCF and 1^st/2^nd Interviews. Before proceeding to consider all the evidence adduced, the Adjudicator reminded herself of the standard of proof, and that any inconsistencies found in SL’s case might not be fatal to his claim as long as the centerpiece of the story stood.

45.In essence, SL claimed that if he were returned to India he would be at risk of harm from members/supports of the BJP because he had done such a good job for the INC. Thus, the Adjudicator noted it was a core assertion that SL had worked for the INC with a great deal of success, and had held the post of “Block President” of the Village, but SL did not adduce any objective support for the important assertion of contribution to his party. The Adjudicator said because the burden of proof lay with SL, it was for him and his legal representative to obtain sufficient materials in support of his case. She considered it would not have been difficult for SL and/or his legal representatives to obtain supporting evidence of SL’s work for the INC (which was a major political party in India with a website that could be accessed worldwide). The Adjudicator considered it should not have been difficult to contact a senior INC official to send supporting evidence of SL’s great contribution to the party. She further considered verification that SL had worked hard for the party during the Election as “Block President” should be easily obtainable, but was not.

46.The Adjudicator noted at the 2^nd Interview SL was not clear whether he had worked for the INC itself or an alleged associate organisation AISCO. The Adjudicator also said when SL was asked to comment on COI stating AICC had denied AICSO was under the umbrella of the INC, he was unable to give a satisfactory answer to the query that he had not been working as a “Block President” for the INC. SL’s response was “I only know the information and instruction that are given by Mr Mohammad Riyaz, a member of the Congress Party”.

47.The Adjudicator considered SL must have known he was the one to adduce evidence in support as back in 2006 he had made an application for asylum in Hong Kong. Yet SL did not adduce evidence to show (a) the BJP spent a lot of money “pulling votes”, (b) the BJP promised to provide 1.5 million jobs to the unemployed in the area, and (c) the BJP promised to remove the qualifying examination for teachers so as to lower the threshold for entrance into the teaching profession. Without objective support, the Adjudicator considered these unsupported assertions to be simply self-serving, but they were core/material to SL’s claims that (i) because he used to work a lot for the INC enmity was built up against him by the BJP leaders/supporters so they took revenge on him after the BJP came into power, and (ii) people of the BJP could take revenge on SL as he was always taking part in the INC but lost power after the Election.

48.The Adjudicator acknowledged it was understandable that supporters of rival political parties would not agree on policies, but it did not follow enmity must exist between supporters of rival political parties. The Adjudicator considered that even if the BJP supporters did not see eye-to-eye with SL at the Village and/or at grass roots level, it did not follow the leaders of the BJP would have become enemies of SL, and there was no reason to think the leaders of BJP would even know of the existence of SL. Further, no good reason was proffered to show why the BJP decided to take revenge on SL only after the Election when prior to the Election SL did not have direct confrontation with the BJP. The Adjudicator said logic dictated the time to remove, eliminate or disable a political opponent was before and not after the Election since winning the Election was what mattered, so taking revenge after the BJP won the Election would indicate the motive for the alleged attacks on SL was not political but personal.

49.The Adjudicator considered the COI materials relied on by the DOI were from a range of credible sources, provided insight into the circumstances of persons similarly situated as SL, oriented to present/ future concerns (as opposed to past harms), were assessed in light of SL’s personal circumstances, and avoided cultural and foreign policy biases regarding its plausibility.

50.The Adjudicator considered there was no evidence showing SL had suffered physical and/or mental suffering of the requisite severity. He did not suffer any injury from the Slapping Incident. The doctor gave SL ointment and painkillers for the Beating Accident (but there was no medical report from the Village doctor), and he rested for 4 days. SL was not physically injured in the Shooting Incident. The Adjudicator said even if SL had been frightened by the firing of bullets and/or by the Threatening Calls, those experiences would not reach the minimum level of severity. The Adjudicator also noted there was no evidence that the alleged perpetrators ill-treated SL with an intention listed in the definition of “torture” in section 37U of the IO persecuted him for any of the Convention reasons. The Adjudicator said the ill-treatment of SL by the BJP (even if accepted) did not relate to the interests/policies of the Indian government/authorities, and the evidence adduced by SL was clear that the issue was not political. The Adjudicator considered that just because SL supported/held political opinion of the INC when there was a BJP government in power did not entitle SL the status of a refugee, and there was nothing to show SL’s political views were not tolerated by the Indian authorities. The evidence from the public domain such as INC’s website showed there were daily posts criticising Mr Modi’s government, which showed the BJP government allowed and tolerated criticism of its policies. The Adjudicator concluded on the evidence adduced that SL had not shown he held a political opinion that was not tolerated by the government.

51.Bearing in mind the test was not eradication of real risk of relevant harm but whether there was a reasonable provision of state protection in the circumstances, the Adjudicator was of the view there was nothing to show there would be insufficiency of state protection on behalf of the Indian government.

52.In relation to SL’s 2 visits to C Police Station, the Adjudicator found the complaints against the police there were unwarranted:

(a) SL said the police were not willing to take action as the BJP was in power at the time, but he was not able to give the names/addresses of his attackers in relation to the Beating Incident to the police. Without sufficient information, the police could not be criticised for not taking action against a group of unidentified persons.

(b) SL said the police were unwilling to take action over the Shooting Incident because the BJP was in power and controlled the police. But SL could not identify the shooters and it was dark outside. The police agreed to investigate. They could not be criticised for being unable to locate/apprehend the culprits without sufficient/adequate information.

(c) Common sense dictated it was not realistic to expect policemen to go out to look for or question/arrest unidentified persons.

53.The Adjudicator considered the COI showed the Indian government had put in place measures which were appropriate and sufficient (see paragraphs 16-17 of the DOI Decision), and even though the COI noted there were numerous failings in the police force in India it did not mean the state was unwilling to afford protection to SL.

54.The Adjudicator found there was no evidence (a) to support SL’s concern that the unidentified perpetrators had the support/assistance of the Indian authorities, (b) to support SL’s concern that the government had acquiesced in the actions of the unidentified perpetrators, (c) that the perpetrators ill-treated SL with an intention listed in the definition of “torture” in section 37U of the IO, (d) that the alleged ill-treatment of SL had any relevance to the interest and/or benefit of the Indian government, and (e) that SL had a well-founded fear of persecution for 1 or more of the Convention reasons. The Adjudicator also said the question of internal relocation would only arise if SL had established a real risk of persecution in his home area which he had not.

55.The Adjudicator concluded SL’s claim for protection from refoulement for Torture Risk, BOR 3 Risk and Persecution Risk had not been established, and she affirmed the DOI Decision.

VI.  Summons

56.The DOI opposed SL’s application for leave to apply for judicial review and the application for an extension of time to apply for such leave. But without prejudice to the DOI’s opposition to SL’s applications as aforesaid, Ms Kao informed this court the DOI had no objection to the proposed amendments marked in red as per the draft annexed to the Summons. Given Ms Kao’s stance, I will proceed to consider SL’s case on the basis of draft Amended Form 86 as annexed to the Summons in determining whether an extension of time to apply for judicial review should be granted. If I am not so persuaded by SL to grant any time extension, then the proposed amendments would fall away.

VII.  Application for extension of time

57.It was obvious that the Form 86 was not filed within 3 months of the Adjudicator Decision. Section 21K(6) of the High Court Ordinance Cap 4 (“HCO”) provides that:

“Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the Court may refuse to grant –

(a) leave for the making the application; and

(b) any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

Order 53 rule 4(1) of the RHC provides that:

“An application for leave to apply for judicial review shall be made promptly and in any event within 3 months from the date when the grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

58.In the draft Amended Form 86, SL alleged there were good reasons for an extension of time:

(a) Following the Adjudicator Decision, SL made an application to the Director of Legal Aid (“DLA”) for the purpose of challenging the same on/about 6 May 2015.

(b) The DLA took time to consider SL’s legal aid application.

(c) On/about 25 June 2015, SL received the legal aid offer. By a Legal Aid Certificate dated 7 September 2015 (which SL’s assigned solicitors MCA Lai & Co (subsequently known as MCA Lai Solicitors LLP, “MCAL”) received on 10 September 2015), the DLA approved SL’s application, limited to challenge against the Adjudicator Decision only.

(d) MCAL immediately studied SL’s case and tried to contact SL to make enquiries about his case but failed to reach SL. Multiple telephone calls were made since 14 September 2015, and MCAL successfully contacted SL by telephone on 30 September 2015. MCAL had a conference with SL on 5 October 2015. During such conference, SL told MCAL (i) he would obtain documents from India in support of his non-refoulement claim through his friends or family, and (ii) the documents from India such as medical evidence from the hospital were essential/important to his claim. SL indicated he would try to obtain such documents from India if possible, and would let MCAL have the same once available.

(e) MCAL arranged another conference with SL on 26 October 2015 to enquire about the status of obtaining documents from India. Due to financial difficulties and lack of contacts back in India, SL was unable to obtain the requested documents yet. As SL was still in the course of obtaining the documents, he asked MCAL to allow him some time to do so.

(f) On 9 November 2015, SL informed MCAL he was unable to obtain the documents from India as his friends/family were unsuccessful in retrieving the required documents due to bad conditions in India. SL instructed MCAL to prepare his application for leave to apply for judicial review based on existing information.

(g) On 16 November 2015, MCAL attempted to contact SL, but were unable to reach him at the telephone number SL left with them.

(h) On 23 November 2015, SL contacted MCAL and said his mobile telephone was not working and had been given for repair. SL informed MCAL he would like to schedule a meeting on 27 November 2015.

(i) MCAL prepared the Form 86. On/about 4 December 2015, MCAL had another conference with SL with a view to finalising his instructions.

(j) MCAL did not have the benefit of earlier involvement in respect of SL’s torture claim.

59.In SL 2^nd Aff, SL confirmed the factual contents asserted in the draft Amended Form 86 which had been translated/explained to him by MCAL. He also produced various exhibits referred to below.

60.In his oral submissions at the Hearing, SL reiterated his case that he used to be a farmer in India doing agricultural work and raising livestock, but in his free time he used to be a party worker for the CP. He would pass whatever information that came from the CP headquarters to the local officers. The BJP was not pleased about this, and used to oppose him. After the BJP won the Election, there was fierce competition between the BJP and the CP, and SL perceived “our job” was to oppose the BJP’s rule. Then troubles increased. A family member who had stayed in Hong Kong before advised SL to go to Hong Kong to seek refuge. SL followed such advice, took money from his relative, and came to Hong Kong. He was detained for 4½ months before he was released on recognizance. SL submitted that since the BJP was still in power in the Village, so “this kind of violence” was still going on and he wanted to stay in Hong Kong. SL did not say much at the Hearing on the question of delay except to say he was sorry and to ask for forgiveness in respect of whatever error that was made in relation to his application.

61.As alluded above, the DOI opposed SL’s application for extension of time to apply for leave to apply for judicial review. Ms Kao essentially relied on 3 grounds:

(a) there was undue delay with no good reason to justify an extension of time;

(b) an extension of time would be detrimental to good administration;

(c) there was no reasonable argument with realistic prospect of success in relation to SL’s application for leave to apply for judicial review.

(a)   No valid grounds for delay and no good reason to extend time

62.The Form 86 was filed on 15 December 2015, so it was some 8 months after the Adjudicator Decision and some 5 months beyond the deadline provided in Order 53 rule 4(1) of the RHC. According to AW v Director of Immigration & anor,[5] whenever there was failure to act promptly or within 3 months, there was “undue delay”. Even though the court might be satisfied in light of all the circumstances there was good reason for the failure, nevertheless the delay, viewed objectively, remained “undue delay”. So the court had a discretion to refuse leave for the making of the application or the granting of the relief sought on the substantive application on the ground of undue delay if it considered granting such leave would likely cause substantial hardship to, or substantial prejudice to rights of, any person or would be detrimental to good administration.

63.In Re Thomas Lai Application for Leave to Apply for Judicial Review,[6] G Lam J stated the principles to be applied in an application to extend time for judicial review, which principles were no less applicable to cases involving claims for humanitarian protection, were as follows:[7]

(a) While in the public law field it is essential that the courts should scrutinise with care any delay in making an application, the provisions of section 21K(6) of the HCO and Order 53 rule 4(1) of the RHC are not intended to be applied in a technical manner. As long as no prejudice is caused, the court will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled.

(b) However, it must also be borne in mind that unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration will be unduly disrupted, and policies/decisions put into uncertainty for many months after they have been made and acted upon.

(c) What may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which depends on the circumstances of each case.

The following factors are likely of significance (but are not exhaustive): (i) the length of the delay, (ii) an explanation for the delay, (iii) the merits of the substantive application, (iv) prejudice, and (v) whether the application raises questions of general public importance.[8] The factors in (i) and (ii) above may but not necessarily involve the time taken to apply for and obtain legal aid, or the time taken to apply for extension of the scope of legal aid and/or to make legal aid contribution.[9]

64.I set out below a chronology of the purported steps taken by SL to prosecute his application for leave to apply for judicial review (“Chronology”):

Date (2015)	Action
24 April	Adjudicator made the Adjudicator Decision
6 May	SL applied for legal aid
7 May	DLA wrote to the Board for information
14 May	The Board acknowledged receipt of letter by the DLA
4 June	The Board provided the DLA with information requested
25 June	Legal aid was offered to SL, and the DLA sought SL’s reply on nomination of solicitors
2 July	SL provided the DLA with his nomination of solicitors
10 July	The DLA received SL’s acceptance of legal aid
7 September	The DLA filed the Legal Aid Certificate with case assigned to MCAL - the assigned solicitor was MCAL’s Mr Pang and legal aid was granted for commencing judicial review against the Adjudicator Decision limited to filing Form 86 and stay of proceedings
10 September	MCAL received the Legal Aid Certificate
14-30 September	MCAL attempted to contact SL on numerous occasions and finally made contact on 30 September 2015
5 October	SL attended MCAL’s offices for conference, and requested time to locate documents from India in support of his non-refoulement claim
26 October	SL attended MCAL’s offices for a 2nd conference to provide an update on efforts to locate supporting documents, and he requested further time to obtain supporting documents from India
9 November	SL requested MCAL to prepare the present application based on existing information
23 November	SL contacted MCAL and informed them there was an issue with his mobile telephone, and a conference on 27 November 2015 was arranged
on/about 4 December	SL attended MCAL’s offices for a further conference to finalise the Form 86
15 December	SL made application for leave to apply for judicial review

65.In the draft Amended Form 86 and SL 2^nd Aff, SL tried to justify the delay by reason of time spent on applying for legal aid. I agree with Ms Kao there was no general proposition that difficulty or time taken in obtaining legal aid would be a good reason for extending time to apply for judicial review, and each case depends on its own circumstances.[10] In AW[11] where the legal aid certificate was issued with plenty of time for the applicant’s legal advisers to file an application for judicial review within the time limit of 3 months, Kwan JA held the time taken to apply for and obtain legal aid could not account for the failure to file the notice of application within time. In Tiwari Amandeep v Torture Claims Appeal Board and Director of Immigration,[12] the applicant was 6 months out of time in filing his notice of application for leave to apply for judicial review. Yau J held that the time spent by an applicant in applying for and obtaining legal aid (even though such matters might be beyond his control) would not necessarily constitute valid ground justifying the delay, but would be a factor to be considered in deciding whether time extension should be granted. In that case, unlike AW, the legal aid certificate was issued beyond the 3 months’ time limit, but Yau J held at paragraph 30 it still behoved the applicant and his legal advisors to act with due diligence.

66.Besides, it was SL’s duty, if he wished to rely on the time to apply for and obtain legal aid as a ground for extension of time, to provide a full chronology regarding his legal aid application which would be verified or confirmed by the relevant legal aid officer who might provide such further information and explanation as might be appropriate or necessary either by way of a letter or an affidavit.[13] But here, the DLA by his letter to MCAL dated 25 August 2016 merely gave comments on MCAL’s “draft chronology for [their] further handling”, and it did not appear that such draft chronology (see items marked in italics in the Chronology above) was either verified or confirmed as set out in the guidance in BI v Director of Immigration.[14]

67.Having carefully reviewed the Chronology above, I am not persuaded SL had exercised due diligence in his legal aid application. First, the DLA made an offer of legal aid on 25 June 2015, but SL did not accept such offer until 10 July 2015 and did not explain the lapse of about 2 weeks. Secondly, the Legal Aid Certificate was issued to SL and filed on 7 September 2015, which was just over 2 months after SL confirmed with the DLA his nomination of MCAL as his assigned solicitors. There was little to show what SL did during those 2 months when he should be anxious to follow-up closely with the DLA on his case after he confirmed acceptance of the legal aid offer. As explained in paragraph 65 above, even though SL’s Legal Aid Certificate was issued beyond the 3 months’ time limit, neither SL nor MCAL could adopt a lax attitude in filing the Form 86. Indeed, by the time MCAL was assigned by the DLA to represent SL, they must have known that time to apply for leave to apply for judicial review against the Adjudicator Decision had expired and SL would need to act with promptitude.

68.I agree with Ms Kao that the Chronology above showed there was lack of due diligence on SL’s part. SL did not explain why it was only 3 weeks later that he finally made contact with MCAL. According to the draft Amended Form 86 (verified by the SL 2^nd Aff), MCAL tried to reach SL by telephone during 14-29 September 2015 to no avail, but there was no explanation why SL could not be contacted by telephone during this period or why he did not take the initiative to contact MCAL. As it were, SL only met MCAL for the 1^st time on 5 October 2015, which meant almost 1 month had lapsed since MCAL were assigned to act for him.

69.After that, another month or so lapsed during which SL requested time to obtain supporting documents from India (see discussion in paragraphs 70-72 below), and it was not until 9 November 2015 that SL requested MCAL to prepare his application based on existing information.  But again MCAL could not reach SL by telephone at the number he provided until SL contacted them on 23 November 2015.  In my view, SL’s allegation that his mobile telephone was sent for repair was not a justifiable excuse for losing contact with MCAL.  In my view, even if his mobile telephone required repairs, SL could have contacted MCAL had he pursued the matter with diligence. There were public telephones about town for minor fee. Further, SL had been to MCAL’s offices for conference twice in October 2015, and he did not explain why, if he was anxious for expeditious progress, he did not personally attend MCAL’s offices to follow-up on his case. In my view, this demonstrated a lax attitude on the part of SL in pursuing his application.

70.But SL went on to contend he needed time to obtain supporting documents from India which contributed to the delay. I am not persuaded this was a good reason for the court to extend time.  As noted by the Court of Appeal at page 407 in AW, the most relevant documents were the DOI and Adjudicator Decisions. Further, SL should have with him the records of the 1^st/2^nd Interviews in which he had legal representation via the Duty Lawyer Service. Moreover, it was not suggested SL could not have taken out the Form 86 in the absence of the alleged further documents from India. After all, MCAL eventually prepared the Form 86 based on existing information and without any further documents from India. On such view, as early as in September 2015, MCAL could have prepared the Form 86 and formulated the grounds therein on behalf of SL even without the alleged further documents from India. 

71.SL also did not explain why he did not seek the alleged further documents from India earlier than his 1^st conference with MCAL on 5 October 2015. During the 1^st screening process by the DOI since late 2014, SL (who was then legally represented via the Duty Lawyer Service) must have known he ought to have submitted to the DOI any supporting documents he wished to rely on.  The Guidelines for Completion of the NCF stated as follows:

“6. You must return this completed form together with all documents supporting your claim that are readily available. You should provide English or Chinese translation if any evidence or documents are in other languages and submit them without delay. If the documentary evidence or any other document(s) is not readily available and may only be submitted after returning this form, you must, upon return of the completed form, clearly indicate in writing your intent to submit further supporting document(s) at a later stage. Depending on individual circumstances, you will be given a reasonable opportunity to submit further supporting document(s) after returning this completed form.

……

9. The provision of information in this form is voluntary. Nevertheless, it is your duty to provide all information relevant to the claim and make prompt and full disclosure of all material facts in support of the claim, including any document supporting those facts. You are therefore reminded that failure to provide sufficient details relating to your identify or the claim may jeopardize the assessment of your claim or your appeal / petition (if any). You should also be aware that any failure to answer questions of importance to your claim may damage your credibility and jeopardize the assessment of your non-refoulement claim.

……

Points to note:

……

You may submit the documents supporting the claim that are not readily available at his stage after the return of this form.  You must clearly indicate such intention in your answer to question 34 below.”

72.By the time of SL’s 2^nd conference with MCAL some 3 weeks later on 26 October 2015,[15] SL sought yet further time to obtain the purported supporting documents. At that stage, there was nothing to show any real likelihood that the alleged further documents would be forthcoming if further time were taken to seek such documents, and by then SL himself noted there were financial difficulties and lack of contacts in India which made it difficult to secure such documents. SL also did not explain why in the end the alleged further documents could not be secured and he asked MCAL to prepare his application on existing information.

73.In my view, the above matters showed SL had not been diligent in following up his own case both in the course of his application for and after he was granted legal aid.

(b)   Detriment to good administration

74.In Po Fun Chan v Winnie Cheung,[16] Litton NPJ said “[where] an application is made many months after the time limit mentioned in r. 4, or where the orders sought would lead to no practical benefit, the judge is entitled to refuse leave, however strong the complaint might otherwise be”. Hartmann J (as he then was) observed in Law Chun Loy v Secretary for Justice on behalf of the Chief Executive of the Hong Kong Special Administrative Region[17] that “any person who seeks by way of judicial review to challenge a public law decision is from the outset under a clear warning: ‘sleep on your rights and, even if your cause is meritorious, you may find the gates locked against you’”. G Lam J at page 16 in Re Thomas Lai said, “[it] must however also be borne in mind that unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration is unduly disrupted and policies and decisions are put into uncertainty many months after they have been made and acted upon”.[18]

75.I note at the outset allegations that the delay did not cause any prejudice and that an extension of time was not likely to cause any detriment to good administration would not arise for consideration unless/ until good reasons had been shown for the delay.[19] And I have found there had been undue delay in taking out Form 86, and there was no good reason to account for the delay (see paragraph 73 above). But even if I am wrong and the aforesaid allegations arose for consideration, I find SL’s delay in bringing the present application (which I have found to be unjustified) would prejudice good administration. As Chow J in Nisa Azizan & anor v Director of Immigration & anor explained, “generally speaking, unjustifiable delay in challenging immigration decisions made by the [DOI] or the Secretary [for Security] would be detrimental to the administration of effective immigration control in Hong Kong”.[20]

(c)   Merits of the substantive application

76.Ms Kao submitted SL’s intended grounds of judicial review in the draft Amended Form 86 lacked merits, which she said provided further reason why time extension ought to be refused.

77.In the draft Amended Form 86, SL raised several intended grounds of review:

(a) Unfairness and procedural irregularity (“Ground 1”):

(i) The Adjudicator must have known that an oral hearing was necessary as such an oral hearing (ie Adjudicator Hearing) was set down, but failed to conduct an oral hearing in dismissing SL’s appeal/petition. An oral hearing was necessary because (1) SL raised a number of new matters in his appeal/petition, (2) SL was not given an opportunity to respond to COI relied on by the DOI/Adjudicator, (3) SL was not asked about the lack of medical certificate from the Village doctor in India, (4) the Adjudicator did not put to SL her criticisms for his not providing corroborative evidence in paragraphs 28-29 of the Adjudicator Decision, (5) the Adjudicator did not put to SL her finding that it defied logic for revenge to be taken on SL after the Election, and (6) there were issues of credibility. As the burden of proof lied on SL, he should be given every opportunity to do so.

(ii) The Adjudicator failed to appreciate the difficulties of proof faced by persons who had to flee from their country to seek refuge.

(iii) The Adjudicator failed to apply the relevant law in section 15 of Schedule 1A of the IO when SL personally submitted the Med Cert and 2^nd Explanation, but the Adjudicator (1) questioned the relevance/ validity of the Med Cert by pinpointing the inconsistency with the 1^st Explanation and lack of proper address submitted by SL, which were irrelevant considerations, and (2) criticised SL because sick leave or follow-up were not granted in the Med Cert.

(b) Unfairness and procedural irregularity (“Ground 2”):  The Adjudicator relied entirely on information provided by SL and failed to carry out sufficient enquiry. The Adjudicator also accepted COI relied by the DOI by merely stating such materials were considered but without allowing SL to comment on them. The Adjudicator put SL to strict proof of his claim and adopted “an attitude of sitting back”, and came to the conclusion merely on the basis of evidence adduced by SL. Thus, the Adjudicator gave no importance to the circumstances of SL, and her conclusion was an unfair decision.

(c) Unreasonableness and procedural irregularity (“Ground 3”): By failing to conduct an oral hearing, the Adjudicator failed to attain the high standards of fairness required by the Wednesbury test, and the Adjudicator was unreasonable in the public law sense. The Adjudicator could have adjourned the oral Adjudicator Hearing to allow SL a fair opportunity and to have the Adjudicator reach a fair/reasonable decision. The Adjudicator Decision was one which no reasonable decision-maker could have made if properly directed himself/herself in law, if seized of the relevant facts and if proper considerations were taken into account. It was also not reasonable in the public law sense to conclude that lack of sick leave and/or lack of follow-up in the Med Cert meant the oral hearing should not be adjourned.

78.I note that as a starting point the court in any judicial review plays a supervisory role and does not adjudicate substantively on the impugned decision, and judicial review is not a further/alternative appeal procedure.[21] As I have explained in RM v Gerard Paul Muttrie, Esq & anor,[22] “…… [in] the exercise of its supervisory jurisdiction in the context of judicial review, the court is to examine whether the DOI and/or Adjudicator, in dismissing the USM claim or petition (as appropriate) (a) made any error of law in his decision, (b) handled the matter or adopted procedures without compliance with high standards of fairness as required by the law and as explained by the Court of Final Appeal in Secretary for Security v Sakthevel Prabaker,[23] and (c) whether the substantive decision satisfied the enhanced Wednesbury[24] test”.[25]

79.A key complaint in Grounds 1 and 3 was the Adjudicator’s decision not to accept the 2^nd Explanation and Med Cert and to determine the appeal/petition (despite SL’s absence at the Adjudicator Hearing and without adjourning the oral hearing for SL to attend) was irrational, unreasonable and unlawful in the circumstances of this case. Ms Kao submitted that this court ought to be slow to interfere with such decision. Under section 15(3) of Schedule 1A to the IO, if the Board has not received the party’s written explanation together with any supporting documentary evidence within the specified period, or is not satisfied with the party’s written explanation or supporting documentary evidence, the Board may determine the appeal/petition despite the party’s absence at the hearing. It was not evident from such provision that the oral hearing must necessarily be adjourned if failure to attend was due to a reasonable cause or medical document was sufficient/satisfactory to show a reasonable cause. 

80.The letter to SL by the secretariat of the Board of 9 March 2015 reminded him to provide written explanation of his failure to attend the Adjudicator Hearing together with documentary support, and further advised that if the Board inter alia was not satisfied with his written explanation or supporting documents the Board would proceed to determine his appeal/petition. The Adjudicator took into account the surrounding circumstances in considering whether the 2^nd Explanation / Med Cert amounted to a “plausible and reasonable excuse”, came to her view that in all the circumstances SL’s explanation was not satisfactory, and then proceeded to determine his appeal/petition under section 23(1) of Schedule 1A of the IO. The 2^nd Explanation / Med Cert simply stated SL attended TMH’s AED on 9 March 2015 for “[h]eadache”. Even on the most anxious scrutiny, it cannot be said the Adjudicator’s decision of not being satisfied with SL’s written explanation or supporting documents was one which no reasonable decision-maker could have made.

81.In ST v Betty Kwan,[26] Cheung CJHC held it did not follow from the requirement of an opportunity to make worthwhile or effective representations that there must be an oral hearing held before a decision is made. In short, there is no absolute right to an oral hearing. As Ms Kao submitted, whether an oral hearing should be afforded must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision (in terms of its outcome and consequence), the issues involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations. I bear in mind that an oral hearing (ie Adjudicator Hearing) has been scheduled for SL’s appeal/petition to the Board, but I also note that in the course of processing his non‑refoulement claim SL had 2 oral hearings before the DOI (ie the 1^st/2^nd Interviews) when he was legally represented via the Duty Lawyer Service (with the help of a Hindi interpreter). SL was legally represented up to the time of the DOI Decision and the appeal procedure was explained to him. As it turned out (ie even as at the Hearing before me), SL had no further or additional facts and/or documents to give. Further, the COI had been canvassed at the 1^st tier screening when SL was legally represented. I am not persuaded that Grounds 1 and 3 were reasonably arguable.

82.As for Ground 2, SL argued the Adjudicator failed to carry out sufficient inquiry. It was true that SL was not legally represented for the appeal/petition to the Board, but he had legal representation/advice up to the time of the DOI Decision. He had been afforded opportunity to present his case as he wished, to provide any documentary support, and to address matters of concern, which materials were made available and considered by the Board. SL (and no doubt his then legal representative as well) was aware that the 1^st/2^nd Interviews were the principal forum/opportunity to clarify his case and to address points of contention, and that he should include all information/documents he wished the DOI to consider.[27] In the Notice of Appeal/Petition filled by SL, SL was notified to include all information he wished the Board to consider and to set out all grounds of his appeal/petition.[28] SL signed the declaration in the Notice of Appeal/Petition that he believed the information he supplied was complete, correct and up to date in every detail. Even at the Hearing, there was no suggestion SL had other information/documents that could only be given at any oral hearing. I accept SL was unrepresented when he filed the Notice of Appeal/Petition, but he was able to fill out the Notice and must have known he could have raised relevant issues or submitted further documents, and if he had any difficulty he could have made enquiries with the Board.

83.As for the COI materials, SL was legally represented at the 1^st tier screening. He was in the best position to understand how he was to present his claim and to know what materials would assist in establishing his claim. If he wanted the DOI to consider any particular materials (including COI materials), it was for him to conduct his own investigation and obtain information/materials that he required to prove his case. The Court of Appeal held in CH v Director of Immigration that even the duty of “joint endeavour” does not entitle the claimant having stated a claim to simply sit back and require the DOI to disprove it.[29] High standards of fairness did not require the DOI to keep probing and inquiring where the objective circumstances made it reasonably clear that the claimant and those representing him were aware of what he had to show and had already produced or mentioned he all that he wanted to produce or mention.[30]

84.In my view, notwithstanding the scheduled Adjudicator Hearing, high standards of fairness did not in the present case require the Adjudicator to hold an oral hearing to further probe and inquire in relation to SL’s claim. In the present context, SL when he was under legal advice had been given a number of opportunities to provide information/ documents, and the Adjudicator after having regard to all available materials/documents, including the NCF, records of the 1^st/2^nd Interviews and COI submitted and relied upon by the DOI and SL / his legal representative in the 1^st tier, was entitled (even under the high standards of fairness and the duty to make enquiry) to consider SL as having been provided with reasonable opportunities to submit all information he could have been able to provide and then under section 15(3) of Schedule 1A to the IO to assess and decide, based on such information/documents and SL’s explanation for his non-attendance, whether it was necessary to hold an oral hearing, and if not to proceed with determine the appeal/petition. The Adjudicator had considered the circumstances of SL in the context of his claim, and I am unconvinced the Adjudicator in deciding not to hold an oral hearing to keep probing and enquiring was in breach of any procedural fairness and duty to make enquiry in the present circumstances in determining the appeal/petition.

VIII.  Conclusion

85.In all the circumstances, I find there was substantial undue delay with no good reason to justify an extension of time, and there was no reasonably arguable ground of review with a realistic prospect of success. I therefore dismiss (a) the Summons, and (b) SL’s application to extend time for SL to apply for judicial review. That being the case, SL’s application for leave to apply for judicial review falls away as it was out of time. I also grant a costs order nisi that there be no order as to costs in respect of SL’s applications.

The applicant acting in person and present

Ms Vivian Kao, government counsel of the Department of Justice, for the putative interested party