MI v. IAN CANDY

HCAL 21/2016

[2018] HKCFI 415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 21 OF 2016

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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 20 January 2016 (“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 11 May 2015 dismissing MI’s petition and confirming the decision of the Director of Immigration (“DOI”) made on 8 August 2014 (“DOI Decision”) refusing MI’s application for non-refoulement protection (“Adjudicator Decision”).

2.  By Form 86, MI 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 for certiorari to bring up and quash the Adjudicator Decision. Form 86 was supported by MI’s affirmation filed on 20 January 2016 (“MI 1^st Aff”).

3.  On 30 August 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 for attendance by MI and DOI as putative interested party (and by the Adjudicator being the putative respondent if he so desired).

4.  On 17 January 2017, MI filed his 2^nd affirmation (“MI 2^nd Aff”) and the affirmation of Mohammad Mustafa (litigation manager of MI’s solicitors M C A Lai Solicitors LLP formerly known as M C A Lai & Co, “MCAL”) (“MM Aff”).

5.  On 20 January 2017, MI by his solicitors filed a summons for leave to amend Form 86 in the manner marked in red as per the draft attached to the summons (“Summons”).

6.  As seen in the discussion below, MI was legally aided for (a) the application for leave to apply for judicial review, (b) the application for extension of time to apply for such leave, and (c) the Summons. The hearing of the aforesaid applications came before me on 26 January 2017 (“Hearing”). The Hearing was attended by Mr Barnes, counsel for MI, and Mr Yu, government counsel for DOI as the putative interested party. The Adjudicator/Board took a neutral stance and did not attend the Hearing.

II.  MI’s CLAIM

7.  MI was born in a village in Sargodha, Punjab, Pakistan (“Village”) and lived there until 2006. He received intermediate level education, and was single. He lived with his parents, brother and 2 sisters at the outskirts of the Village with his uncle MA living next door. There was a small access path from MI’s house (through MA’s and other houses) to the Village’s main market/centre (“Path”).

8.  In 2002, MI and his father supported Dr Mukhtar Ahmad Barath (“Mukhtar”) of the Pakistan Muslim League (Nawaz) (“PML(N)”) who ran in the 10 October 2002 Election (“Election”) for the position of member of the Provincial Assembly (“MPA”). They did not know Mukhtar personally, but supported him because Mukhtar’s father (who was famous within PML(N) and twice MPA representing PML(N)) had the support of MI’s father and grandfather.

9.  MI claimed there were people in the Village who supported another political party PML (Quaid e Azam) (“PML(Q)”). Since the time of MI’s grandfather, such people and MI’s family were enemies due to political dispute. Prior to the Election, such people and MI’s family had grudges over political issues with no actual conflicts/incidents. The outcome of the Election was (a) PML(Q) won many seats for MPA and members of the National Assembly in most areas of Pakistan, (b) the PML(Q) candidate (who was not from the Village) for the constituency that included the Village did not get the MPA seat, and (c) Mukhtar representing PML(N) won a MPA seat in such constituency. The villagers who supported the PML(Q) candidate blamed PML(N) supporters (including MI’s family).

10.  In the 1^st 6 months after the Election, Mukhtar gave support to MI’s whole clan. But in/about April 2003, Mukhtar, who still held the same MPA seat, switched from PML(N) to PML(Q), the then ruling party in Pakistan.[1] Since then, MI and his father ceased to support anyone or any party, and MI no longer had any political affiliation in Pakistan.

11.  One of the PML(Q) supporters was a villager Muhammad Inayat (“Inayat”) who was a policeman working at a police station in Lahore far away from the Village, but who would return to the Village during election or for vacation. His sons Muhammad Iqbal (policeman at Bhera Police Station (“Bhera PS”) close to Miani Police Station (“Miani PS”), “Iqbal”) and Muhammad Javed (not yet a policeman in 2002 but later joined the police, “Javed”) were also in the PML(Q) group. Iqbal and Javed are referred to as the “Brothers” below.

12.  In the morning on 15 October 2002, about 18 PML(Q) supporters from the Village (including Inayat/Brothers) (a) built a brick wall across the Path blocking access by MI’s family to the Village centre, (b) occupied a plot of land belonging to MI’s family adjacent to the Path (“Plot”), and (c) stationed themselves to guard/oversee the Path. They were there the following day. In the same evening, MI’s father and 2-3 villagers went to Miani PS to complain about the brick wall (but the police did not register the report), and were told to return on 17 October 2002 when the police would require the Inayat group to attend the police station to sort out the problem. On the following day, some policemen went up to the brick wall and asked the involved parties to present themselves at Miani PS on 17 October 2002.

13.  MI’s father went to Miani PS in the morning of 17 October 2002, but no one from the Inayat group turned up. Meanwhile, MI, his mother/siblings and MA (on a visit) were at home. The Inayat group came to MI’s house with firearms, and started shooting in the air (or at the walls/door) shouting “Kill ……” using the names of MI, MI’s father and MA. MI claimed they were targeted because their clan and the PML(Q) group had been enemies since the time of MI’s grandfather, and “it seemed that the three of [them] were standing out to go against them”. MI’s mother told MI to go to the college, so he went upstairs intending to leave by accessing MA’s house via the rear of his own house and then go to the Village centre via the Path. But before MI reached the rooftop he was shot at left side head, neck and upper body from the adjacent rooftop, and he was shot several times when he turned around. He became unconscious and fell down. MA was shot in the shin when he came to see what happened to MI. Such incident is referred to as the “Shooting Incident” below.

14.  MI claimed the Shooting Incident lasted 4-5 hours in the presence of villagers in order to intimate MI’s family and scare people away from MI’s house. Later the police arrived and arrested Inayat and others, but Inayat was released after 3-4 days with no charge laid against him.

15.  MA was admitted to the District Hospital in Sargodha, and had an operation to remove the bullet from his leg. MI was brought to a small hospital nearby for first aid, and then transferred to the District Hospital in Sargodha for treatment. He was unconscious for 2-3 days, but on the 5^th day the doctor asked him to leave even though he had not fully recovered from his injuries. MI suspected the doctor was influenced by the PML(Q) people. MI did not submit any medical report in respect of his treatment at the District Hospital in Sargodha for his non-refoulement claim. MI told the Adjudicator “I asked for it. I tried to check it but I was informed that they didn’t keep records for 10 years. They told my father. They were also scared that there would be a case against them”.

16.  On 22 October 2002, MI’s father telephoned Mukhtar who arranged to admit MI to his private Family Hospital in Lahore. MI received blood infusion and had the bullet removed from his chin.[2] MI claimed he was hospitalised for 4-5 months until recovery, but he also claimed he was discharged in early January/February 2003.

17.  Turning back to 17 October 2002, MI’s father filed a First Incident Report (“FIR”) to Miani PS against the PML(Q) group for building the brick wall and for the Shooting Incident (“2002 FIR”). Although MI gave evidence before the Adjudicator that the 2002 FIR was only registered after 3-4 days, copy 2002 FIR on its face showed it was made on “17/10/02 at 8:45 hours day time” and the Shooting Incident took place at 7:30am that day.

18.  On 2 November 2002, MI’s father submitted an application to the senior police superintendent (“SSP”) for another police officer to investigate the Shooting Incident. Pursuant to the 2002 FIR and SSP’s instructions, the police arrested 5 of the PML(Q)/Inayat group who were Inayat’s relatives and who used to campaign and solicit votes for PML(Q) candidates, ie GR, Muhammad Aameer, Muhammad Safdar (“Safdar”), Muhammad Saddique and NI (collectively, “Arrestees”). MI claimed the key culprit who was active in the Shooting Incident (ie Inayat) was also arrested, but he was released after a few days and never prosecuted. Another culprit ZI (also wanted for other crimes) was still at large. The Arrestees were later charged with “attempting murder” and “breaking into someone’s house with intention to disgrace the honour and damage the property”.

19.  As referred to in paragraph 10 above, MI claimed that in/about April 2003 Mukhtar switched allegiance to PML(Q), which was the majority party in control of the Pakistani government at that time, and he became friends with the PML(Q) group. MI gave evidence before the Adjudicator that Mukhtar changed party allegiance “within 1 year”, so his statement in the 1^st TCF (see paragraph 39 below) that Mukhtar changed party allegiance “in around April 2003” or “in early 2003” was “just an estimate”. MI claimed that at the time Mukhtar in MI’s presence tried to put pressure on MI’s father to settle the matter with the PML(Q)/Inayat group by promising to help dismantle the brick wall. MI’s family disagreed as they wanted to seek justice in court.

20.  The case was first heard at the Session Court of Bhalwal Tehsil when MI was still hospitalised. From the time of his discharge from the hospital in 2003 until 2006, MI stayed at the Village (despite being scared/terrified) to attend court and police station every 5-10 days to assist in the investigation and court case against the Arrestees. Eventually the Arrestees were convicted and sentenced to 1 year’s imprisonment. MI considered real justice was not done as he thought the Arrestees “should have been sentenced to 10 years rather than one year”. In the 1^st Interview (see paragraph 39 below), MI claimed the light sentence was probably pronounced shortly after the incident “because they were detained in the police station for 10-15 days”, but he also stated “the court did not give any verdict. The court hearing was still going on when they were bailed after a year”. There was no ruling against Inayat who later died from natural cause.

21.  MI claimed that from 2002 to 2006 the Inayat group continued to harass his family (who were scared/terrified) with death threats and to disturb their daily life, so they mostly stayed indoors except for going to the farmlands. The Adjudicator noted that “apart from [MI’s] unsupported assertions there [was] no other evidence of such continuous threats. There were no other incidents involving the Inayat group which adversely affected [MI] personally during this period”.

22.  MI claimed that in 2006 (ie after Inayat had died), Mukhtar put pressure on MI’s family to settle the matter with the Inayat group, and threatened MI’s father in MI’s presence that it would be better for them to do so otherwise one of MI’s family might be killed and the government would not help them. So MI’s family was forced to settle the court case with the Inayat group in the presence of villagers and people from both sides. MI gave evidence before the Adjudicator that the terms of settlement also required MI’s family to withdraw the case against the Inayat group in relation to the Shooting Incident. Following the settlement, the brick wall was removed and the Path was re-opened, but the Plot was still occupied by the Inayat group, which caused MI’s family to fear it would not be safe for MI (who had accompanied his father to pursue the court case) to stay in the Village.

23.  In July 2006, Iqbal conspired with the police at Miani PS to falsely accuse MI of blasphemy.[3] On 7 July 2006, a FIR was filed against MI (“2006 FIR”). The Adjudicator noted the 2006 FIR on its face did not show the name of the person who filed the complaint, but country of origin information (“COI”) indicated that police officers in Pakistan could initiate FIR without an identified complainant. Nevertheless, MI claimed it was Iqbal who submitted such FIR. When MI was asked at the 4^th Interview (see paragraph 39 below) how he knew this, he said (a) the Inayat group was politically influential, (b) Iqbal worked at the police post under the police station in their area, and (c) the Brothers still had grudges against him after the settlement and wanted to put him in trouble. But when MI gave evidence before the Adjudicator, he at first said the police registered the 2006 FIR on their own with no name thereon, but he later said it was filed on Iqbal’s request as he had no dispute with anyone else and Iqbal was stationed at the police station.

24.  MI claimed he was arrested after 7 days, but he told the Adjudicator it was 4 days later that the police came to his house to arrest him and took him to Miani PS where he was shown the 2006 FIR. At the 2^nd Interview (see paragraph 39 below), MI said the police arrested him on Thursday “and asked [him] to confess to the offence but [MI] refused. On Friday after beating, they made [MI] sign the confession. But in Pakistan, the court was not open on Saturday and Sunday at that time. So they took [MI] to court on Monday”.

25.  According to the Adjudicator Decision,

“42. The date and time of the report shown on the [2006] FIR …… is 7 July 2006 at “2:45 hours of the day” and the date and time of departure from the police station is 8 July 2006 at “8 o’clock daytime”. By reference to the western calendar, 7 July 2006 was a Friday. If [MI] was arrested “after 7 days” he would have been arrested on Friday 14 July 2006, and if arrested “4 days later”, he would have been arrested on Tuesday 11 July 2006.

43. [MI] says that he was detained at [Miani PS] for “3 days where the police beat [MI] up in a cell by using a leather strap on [his] buttocks so as to get a confession out of [him] and eventually [MI] ended up in District Jail in Sargodha for two days before [his] father bailed [him] out” ……

44. In the [2^nd TCF (see paragraph 39 below)] [MI] stated that he was “detained in the [Miani PS] for 2 days. In (sic) the first day, the policemen did not offer [MI] any meal. They brought [him] inside a torture cell which was equipped with wooden sticks and ‘chittar’. They beat [him] up with ‘chittar’ – an oval shaped leather cum rubber pad of at least 1 inch thick and 1 feet (sic) wide, with a big handle with which the policemen beat [him] up on [his] bare buttocks for 6 times …. It was so painful that [he] was forced involuntarily to confess to that false charge of blasphemy” …… In evidence at the hearing, [MI] said, “They took off [his] trousers and hit [him] 6 times with a ‘shoe’ which police use to beat people”.

45. In the [2^nd TCF (see paragraph 39 below)], [MI] stated that “During the 2 days at the police station, [he] asked but was refused access to [his] lawyer” …… In evidence at the hearing [MI] was asked by the Duty Lawyer if he had requested medical treatment. He replied, “[He] asked for everything but they didn’t listen to [him]”. When asked if he had requested food, he replied, “They didn’t allow anything”. He also said that “Every time you ask, they would beat you and torture you”. When asked how he was beaten and tortured he said, “They slapped [him]. So after asking [he] remained silent”.

46. [MI] was brought to the Court on the Blasphemy charge on the Monday following his arrest. His father was permitted to bring him a meal on that day.

47. [MI] stated that “eventually [he] ended up in District Jail in Sargodha for two days before [his] father bailed [him] out” …… During [the 2^nd Interview (see paragraph 39 below)], [MI] said, “[He] was in prison for the offence because Judge (sic) in the court saw [his] confession and he sentenced [MI] to imprisonment. However, [MI] was bailed out after two days” ……

48. When asked what the term of imprisonment was he replied, “Actually, it was not a fixed term because [MI’s] case was still pending. [MI] used to attend the court hearing but the police was not pursuing the case. Therefore the Judge could not finalize the court case. [MI] appealed to the Judge to finalize it but he responded that the case cannot be finalized without the presence of the other party” ……

49. In evidence, [MI] said, “Police deliberately did not follow it (the Blasphemy case)”. [The Adjudicator] asked what action had been taken by the court and [MI] replied, “The court didn’t take any action. The court told [him] they would put the case in ‘pending’ and [he] didn’t need to attend. The case couldn’t be finished until both parties were present”.

50. [MI] said that, while he was not required to attend court, “If [he] had to go anywhere, police would present information that there was a FIR against [him]. If [he] went to another place to work [he] had to present [his] identification card”.

26.  During his detention in the District Jail in Sargodha, only 2 friends were allowed to visit him for about 5 minutes, but he had no access to legal advice. MI claimed that after he was bailed out he had to report regularly to the court (every 10-15 days or every month), and he sought medical treatment and was given antibiotics/painkillers, but still had pain in the buttocks during inclement weather.

27.  MI believed the false blasphemy case against him was a conspiracy between the Inayat group and the Miani PS police because he was told by some villagers the Inayat group would cause him trouble even after settlement of the court case. MI did not lodge any complaint to the authorities about ill-treatment by the Miani PS police because of widespread corruption of the Pakistani police and his fear they would frame him up with more serious charges. Thereafter in 2006, Iqbal tried to cause MI trouble by trying to get him involved in a false elopement case. When asked about the nature of the elopement case, MI said a girl in the Village eloped with a man, and even though her parents/family did not mention MI in any FIR, the police (due to Iqbal’s instructions) tried to involve MI by saying without proof he might have a link to the case, and they asked his father to pay some bribes, which were all done to cause him trouble. The Adjudicator noted MI did not mention this allegation in the TCFs (see paragraph 39 below), but MI explained in evidence that “[in] the [1^st TCF (see paragraph 39 below)] [he] mentioned the incidents for which [he has] evidence. [He] didn’t mention incidents for which [he] didn’t have evidence”.

28.  In 2006, MI (feeling unsafe in the Village) moved to KP, Islamabad to stay there with his maternal uncle/cousin. MI did not encounter any problem during his stay in KP from 2006 to 2008 (ie about 2 years). In 2008, MI learned that Iqbal had been transferred to a police station (but MI did not know which one) in R (about 9 miles to the south of Islamabad). KP and R (referred to as the “Twin Cities”) in effect comprised a large urban area with a combined population of 4.5 million. MI gave evidence he had, by chance, seen Iqbal in the street on one occasion. So in 2008, fearing Iqbal would press the false blasphemy case against him, MI left for S (with a population of 857,000) where he stayed for 8-11 months until 2009 during which time he worked as an assistant worker at the Sargodha Jute Mill there.  In his answer in the 1^st TCF (see paragraph 39 below), MI indicated he resided at S for about 10-11 months in 2008-2009.

29.  After the election in 2008 the Pakistan People’s Party became the ruling party and the influence of PML(Q) waned, so Mukhtar together with the Inayat group rejoined PML(N). Mukthar provided political support to the Inayat group with whom he had a close relationship, but he had no personal grudge with MI or MI’s family. Mukhtar later became Chief Minister in Punjab region and Chairman of the Punjab Public Accounts Committee.

30.  In 2009, MI (accompanied by his friend from the Village and from the jute mill) visited his parents. To avoid harm by the Inayat group, MI returned to the Village at night and mainly stayed indoors. But in evidence before the Adjudicator, MI said he remained at the Village for less than a day, and whilst there he encountered Safdar (son of GR) and ZI from the Inayat group who were involved in the Shooting Incident in 2002 and a third person whose identity was unknown to MI. MI claimed these 3 were PML(Q) persons who used abusive language towards him. There was an argument between MI and such persons who slapped MI’s face a few times and threatened to kill him if he was seen again in the Village. They only stopped and left when some villagers intervened. This incident is referred to as the “Slapping Incident”) below. In the 3^rd Interview (see paragraph 39 below), MI said “They wanted to kill me and got physically (sic) with me by slapping me. Their intention was to kill me. However, when the villagers heard the noise, they came out and separate (sic) us”. MI also described the same incident in the 2^nd TCF (see paragraph 39 below). MI did not make any report to the police as he did not believe he would get justice given the 3 PML(Q) people were related to the Inayat group. MI’s injury was not serious so he did not seek medical consultation, but he did not feel safe to return home anymore. MI moved back to KP where he stayed with his mother’s cousin in 2009, and resided there until 2010.

31.  But in 2009, 2 members of the Inayat group (ie Safdar and A who were the Brothers’ cousins) took up employment at the jute mill where MI worked. In evidence before the Adjudicator, MI said “[they] were trying to ask people where [he] lived”. In the 3^rd Interview (see paragraph 39 below), MI said “(Safdar) and his brother went to [S] with an excuse to get an (sic) employment in the same mill as [MI]. Therefore, [MI] moved to Lahore because they had given [MI] a lot of mental stress and tension already and they were after [MI’s] life”. But MI also gave evidence before the Adjudicator that “[when he] learned that they had registered, the same day [MI] fled. There is a main road with buses to everywhere. At night, [he] took a bus”. But in the 1^st TCF (see paragraph 39 below), MI stated that in 2009 he moved back to KP to live with his mother’s cousin, and that by that time Iqbal had left R so he resided there until 2010, but he harboured fear that sometime unknown to him Iqbal would come back again and do him harm.

32.  In the 1^st TCF (see paragraph 39 below), MI indicated he moved to Lahore, F and S from 2010 to early 2012, but he also said that in 2011 he moved to and resided in Lahore and stayed there until 2012. At Lahore, MI worked as timekeeper at the Comfort Spinning Mill. Nothing eventful happened in the 1^st 6 months. But in 2012 some workers (who came from KM near the police station where Javed was stationed) initiated fights with him. According to MI, he discussed with his father who suspected such workers were under the Brothers’ influence. In the 3^rd Interview (see paragraph 39 below), MI stated some of his co-workers in Lahore came from KM and Javed worked at the KM Police Station, so when they came to know about him, “these workers strangled [him] to kill him and had an argument with him”, and he and his father believed Javed was behind this.

33.  So in March 2012, at his father’s suggestion, MI quitted his job and went to stay with his paternal aunt in Sargodha about 30-35km from the Village. MI said that during his stay there he felt stressful/unsafe in continuing to live in Pakistan. A friend there (who was a villager of MI’s paternal aunt) advised MI to leave Pakistan for Hong Kong where he could claim protection. Such friend himself had a friend who was a torture claimant in Hong Kong. MI applied for a China visa in the same month and made arrangements to travel to Hong Kong with guidance from Ifran, his friend’s friend, who was then in Hong Kong. At the end of April 2012, in order to depart Pakistan, MI relocated to QA, Karachi where he did not encounter any problem.

34.  On 3 May 2012, MI left Pakistan for Guangzhou, Mainland China by air using his own passport. He did not encounter any problem when he passed through Paskistani immigration control. He stayed in Mainland China for about a month, and arranged to enter Hong Kong illegally by boat on 5 June 2012. On 8 June 2012, he was arrested by the police for unlawfully remaining in Hong Kong and was transferred to the Immigration Department (“ImmD”).

35.  MI claimed that sometime after he arrived in Hong Kong, he learned his cousin MS was killed by Safdar and ZI (members of the Inayat group) on 13 October 2012 for the same problem that he faced, ie the Election and the court case over the Plot arising from the brick wall. The police arrested 2 suspects (one of whom was involved in the Shooting and Slapping Incidents) in connection with the case, but they were granted bail after a month with no further action. MI also claimed that during a telephone conversation on 21 October 2013, his brother told him he had moved to live/study at GP and had never returned to the Village because the Inayat group was still hostile to their family and the Brothers were still serving in the police force.

36.  MI claimed his father sought assistance from Village seniors and other respected people in the vicinity to seek reconciliation in order to recover the Plot occupied by the Inayat group to no avail. MI further claimed the false blasphemy case was still pending as it could not be concluded without police consent.

37.  MI feared he would be targeted by the Inayat group members because of the dispute over the Plot. He said the Inayat group was associated with PML(Q) or PML(N) through their support for Mukhtar, and there had been political conflict between his family and members/supporters of PML(Q) for generations. MI claimed he would not receive adequate protection from the police or other authorities if he were refouled to Pakistan due to police corruption and the fact that, in general, the police would only follow the instructions of the MPA. Mukhtar (an MPA) supported the Inayat group because of their loyalty to him. MI also claimed he would not be safe anywhere in Pakistan because some members of the Inayat group were police officers and could locate him wherever he might reside.

III.  PROCEDURAL HISTORY

38.  On 10 June 2012, MI by written representation made a non‑refoulement claim in which he claimed he would be harmed or killed by Inayat, Brothers and their relatives (ie Inayat group) due to grudges arising from political conflicts in Pakistan if he returned there. On 11 July 2012, MI was released on recognisance.

39.  MI with assistance from the duty lawyer service (“DLS”) completed a torture claim form dated 6 November 2013 (“1^st TCF”) and a supplementary claim form dated 19 May 2014 (“2^nd TCF”) (collectively, “TCFs”) under the Unified Screening Mechanism (“USM”), and he attended 4 screening interviews on 28 November and 23 December 2013 and 6 January and 7 July 2014 (“1^st to 4^th Interviews”, collectively “Interviews”) in the presence of his legal representative. MI also submitted several documents in support of his application, including the 2002 and 2006 FIRs, FIR dated 13 October 2012 relating to the killing of MS (“2012 FIR”), affidavit signed by 8 villagers relating to the Shooting Incident (“Affidavit”), hospital records/report in Hong Kong showing 6 metal foreign bodies of 3-6mm in neck and chest wall, affidavit from MI’s friend who was present at the Slapping Incident. MI’s legal representative also submitted 17 items of COI.

40.  MI 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 (“BOR3”) of section 8 of the Hong Kong Bill of Rights Ordinance Cap 383 (“BORO”) (“BOR3 Risk”), and the risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugee Convention”) (“Persecution Risk”).

41.  By the DOI Decision dated 8 August 2014, the DOI rejected MI’s non-refoulement claim. On 19 August 2014, MI lodged an appeal/ petition against the DOI Decision. An oral hearing was held on 21 October and 14 November 2014 before the Adjudicator. At the oral hearing, MI (who was legally represented by the DLS) adopted all the information in the TCFs and Interviews, and gave evidence and was cross-examined by the DOI’s legal representative. The Adjudicator put questions to MI, and heard submissions from both parties. By the Adjudicator Decision dated 11 May 2015, the Adjudicator dismissed MI’s appeal/petition, and confirmed the DOI Decision.

IV.  ADJUDICATOR DECISION

42.  The Adjudicator noted that most information MI relied upon for his appeal/petition was based on hearsay/speculation. He accepted hearsay evidence was admissible, but opined that the weight to be attached to such evidence was by its nature greatly reduced. “Hearsay evidence cannot prove the truth of facts asserted on the basis of such evidence. Speculation or theory can never support any aspect of [MI’s] claim”.

43.  The Adjudicator noted MI gave conflicting versions of the relevant events in relation to the Shooting Incident. On the one hand, he claimed his father went to Miani PS to discuss the brick wall incident, but gave evidence that his mother asked him to go to the college 5 minutes after the shooting began. He said under cross-examination he learned about the duration of the Shooting Incident of 4-5 hours from others when he regained consciousness at the hospital. MI also give evidence that his father went to Miani PS at 7:00am, but the 2002 FIR indicated MI’s father personally attended the police station at 8:45am and remained there until 2:00pm on the same day. The Adjudicator found it implausible MI’s father would have left home while the Shooting Incident continued, and he concluded MI’s evidence in relation to the Shooting Incident was not credible.

44.  On the basis of the x-ray/medical reports, the Adjudicator accepted MI suffered gunshot injuries, but considered many aspects of MI’s evidence raised questions regarding his overall credibility. The Adjudicator found MI’s evidence generally repetitive, and in some instances rambling/vague and did not answer the questions posed. The Adjudicator concluded MI’s overall evidence was unpersuasive and lacking in credibility.

45.  Although MI claimed he was asked to leave on the 5^th day of his admission to the District Hospital in Sargodha (after the Shooting Incident) when he had not yet recovered, the Adjudicator found MI’s suspicion/belief that the doctor was under the influence of the PML(Q) people speculative, and he was not persuaded MI was actually discharged from the hospital while still seriously injured.

46.  MI then claimed he was transferred to Mukhtar’s Family Hospital in Lahore where he remained for 4-5 months. MI gave evidence that when medical reports relating to his condition after the Shooting Incident was asked for, his father was told the hospital did not keep records for 10 years, and “[they] were scared that there would be a case against them”. This suggested to the Adjudicator that MI’s father only made the request for such medical reports recently, so the statement “[they] were scared …..” was hearsay and indicated some speculation on MI’s part. The Adjudicator attached no weight to such assertions, and was not persuaded MI did remain as in-patient at the Family Hospital in Sargodha for 4-5 months as claimed.

47.  Further, the 2002 FIR also indicated MI, his father and his uncle came in person to the police station whereas MI claimed he fell unconscious shortly after he was shot and both he and his uncle were taken from the scene of the shooting to Miani Civil Hospital. Further,

“77. [MI] says he was brought to hospital by his family and that he remained unconscious for 2-3 days. In cross-examination, he said that the [2002] FIR contained information relating to the incident which his father had learned from others. He replied, “He asked from uncle [MA] and when [MI] awoke [MI] also told him”. He was also asked if he had accompanied his father to the Police Station to make the [2002] FIR. He replied, “The hospital was nearby and [MI] and other persons were in hospital. Normally treatment is only done after the FIR”. According to [MI], this is the practice in Pakistan.

78. In cross-examination, [MI] said that the [2002] FIR was only registered 4 days after the shooting took place. He was asked if his father had made a report on 17 October 2002 in relation to the shooting incident. He replied, “it wasn’t registered on 17 October 2002. Before some treatment could be given, some information must be given. The [2002] FIR was registered later”.

79. Given the inconsistencies in [MI’s] evidence surrounding the shooting incident and the later report to the police, [the Adjudicator is] not persuaded, given the low standard applicable, that [MI] received the shotgun injuries in the manner alleged by [MI].”

48.  The Adjudicator also found he was unable to attach weight to the 2002 FIR since it contained statements of fact that were inconsistent with MI’s evidence. When he asked MI whether the whole 2002 FIR was made on 17 October 2002, MI replied only “Action by Police” was made on 17 October 2002, and the remaining part was made 4 days later. When it was put to MI he had only regained consciousness 2-3 days after the Shooting Incident and could not have provided any information in the 2002 FIR, he replied “[he] gave after 3-4 days when [he] regained consciousness”. But when it was pointed out to him that he said it was necessary to give a statement before any treatment was provided, MI replied “[his] father was already in the Police Station. He later discovered people were injured so he asked police to go with him to the hospital so that treatment could start. [MI] was unconscious in Miani for 1-2 days”. But then it was pointed out to MI that he said in the 1^st TCF that his father registered a FIR on the same day (ie 17 October 2002), MI replied “[his] answer is that [his] father went on 17 October 2002 but the police didn’t listen to him. [His] father told them to treat [MI] and they regarded this as information to make [his] treatment. On the same day the police arrested 4-5 persons but the real FIR was only registered 4 days later”.

49.  The Adjudicator concluded he was unable to attach any weight to the 2002 FIR submitted by MI in support of his claim due to numerous inconsistencies in MI’s evidence in relation thereto. The Adjudicator found MI’s many explanations relating to the manner in which the 2002 FIR was registered unconvincing and lacked credibility, and there was nothing in the COI about the procedure for registering a FIR to suggest it must be registered before any medical treatment could be given to the victim of a shooting.

50.  The Adjudicator also considered the Affidavit signed by 8 persons that purported to be an eye-witness statement in relation to the Shooting Incident. It was handwritten on plain stamped paper bearing the chop of the stamped paper seller. The Adjudicator held “[it] is not an official document. The case number of the [2002] FIR stated in the Affidavit is different from that on the [2002] FIR itself. The document was made on 26 October 2011”. MI explained in evidence that “[this] copy of the [2002] FIR is with me. The villagers just copied it from here (the copy FIR). Maybe they are illiterate”. Given the long lapse of time between the Shooting Incident and the making of the Affidavit, the Adjudicator was not persuaded MI gave any truthful account of how the Affidavit came into existence.

51.  MI submitted copy 2006 FIR which he said was registered against him for the false blasphemy case “on foot of which he was later arrested”. MI claimed the 2006 FIR was registered when Iqbal “conspired with police force in [Miani PS] to frame [him] up by bringing a false blasphemy case against [him]”. MI gave evidence that the 2006 FIR was registered at Iqbal’s request, and that he knew so because Iqbal was employed at the police station and “we are sure of it because [MI] had no dispute with anyone else”.

52.  But the Adjudicator found MI’s evidence in this respect was based on his own speculation. MI claimed under cross- examination that his father obtained copy 2006 FIR when he was brought to court and granted bail. In the 1^st TCF MI said he was charged under section 144 of the Pakistan Penal Code, and in the Interviews he said he was charged under “Section 188 TP3 Amplifier Act of Pakistan law”. The 2006 FIR dated 7 July 2006 showed on its face the report was made at “2:45 hours of day”. The date/time of departure from the police station was shown as “08/07/06 at 8 o’clock daytime”. The body of the 2006 FIR showed the alleged offence occurred at “2:15 hours of daytime”, the police officer who received the report left the police station on patrol at “2:30 hours of day time”, and the alleged offence was contrary to section 144 and section 188 TP 3 Amplifier Act.

53.  The Adjudicator found there were clear inconsistencies on the face of the 2002 FIR itself, and the COI indicated there was neither a section 144 nor section 188 in the (Punjab) Regulation and Control of Loudspeakers and Sound Amplifiers Ordinance 1965 nor any such section in the Pakistan Penal Code that related to the offence of blasphemy. Whilst there was COI that indicated it was not uncommon for false accusations of blasphemy to be made out of malice, the Adjudicator was not persuaded on the totality of the evidence that a false accusation of blasphemy was actually made out against MI or the copy 2006 FIR he submitted was a genuine document, and the Adjudicator therefore attached no weight to the copy 2006 FIR.

54.  MI claimed he was arrested/detained for 2 days at Miani PS “on foot of the false [2006] FIR”, and during such detention he was assaulted by 3 police officers to force him to confess to the alleged blasphemy. MI stated in the 1^st TCF that “police beat [him] up in a cell using a leather strap on [his] buttocks so as to get a confession out of [him]”, but said in evidence the police officers “took off [his] trousers and hit [him] 6 times with shoes (sic) which police use to beat people”. MI also said in evidence “…… every time you ask, they would beat you and torture you”, and when he asked for access to a lawyer they slapped him so he remained silent after asking. The Adjudicator held that even assuming MI was arrested and ill-treated during his detention, the level of ill-treatment was not of the degree of severity required to support an application for non-refoulement protection.

55.  MI claimed he was brought to court and sentenced to imprisonment because the judge saw his confession, but was granted bail after 2 days. When asked as to his term of imprisonment, MI said it was not a fixed term “because [his] case was still pending. [He] used to attend the court hearing but the police was not pursuing the case”. MI said in evidence the police was deliberately not following the blasphemy case, but it was still pending even though he was no longer required to attend court, so that “if [he] had to go anywhere, police would present information that there was a FIR against [him]. If [he] went to another place to work [he] had to present [his] Identity Card”. But the COI indicated that Pakistani authorities did not maintain central register of FIRs throughout the country. Police stations, other than the one in which the 2006 FIR was registered, would be unaware of the 2006 FIR save in the most serious/notorious cases. The Adjudicator found MI’s evidence was based solely on speculation, which did not advance his case, and the claimed false allegation could not be categorised as a serious case, much less a notorious one.

56.  The Adjudicator also noted nothing untoward happened to MI when he was in KP, and he found MI’s claim that he saw Iqbal in the street by chance on one occasion lacked credibility given the Twin Cities had a total population of 4.5 million. The Adjudicator concluded MI’s claimed fear that Iqbal would pursue the blasphemy case against him was based solely on speculation.

57.  In relation to the later events, MI complained about the Slapping Incident when he returned home to visit his parents and was accosted by 3 PML(Q) people who slapped his face a few times. There was no evidence apart from MI’s assertion in the 3^rd Interview that they wanted to kill him, and the Adjudicator concluded it was based solely on MI’s speculation. The Adjudicator was of the view that even if MI were slapped by the PML(Q) members, it was a minor assault on a single occasion that did not result in any injury to MI. Further, the Adjudicator found MI’s claims in relation to the activities of Safdar and A at S were based entirely on speculation. “He did not encounter them in [S], and says that he left for Lahore on the same day that he learned that Safdar and [A] were in [S]”. The Adjudicator found MI’s evidence relating to workers in KM was also based on speculation by him and his father, and did not advance his case.

58.  As regards MI’s claim that MS was killed in 2012 for the same reason for which he was targeted, the Adjudicator noted this was unsupported by other evidence. Further, the Adjudicator was of the view that MI’s suggestion as to the motive behind the killing of his cousin was based purely on his own speculation, and concluded the 2012 FIR relating to his cousin’s killing did not advance his case.

59.  As regards MI’s allegation that the authorities would not protect him because some of the Inayat group were police officers and Mukhtar was then a member of the PML(N) party then in power in the government in Pakistan, on the totality of the evidence the Adjudicator found MI’s claim that the Inayat group was supported by Mukhtar to be at best tenuous, and MI’s claim of lack of state protection (based solely on speculation/theory) had not been established even to the low standard required.

60.  Thus, the Adjudicator held MI’s claim under Torture Risk failed as none of the ill-treatment to which MI claimed he was subjected to in the past amounted to torture as defined in section 37U of the IO despite his claim that some members of the Inayat group were members of the police force. The Adjudicator was not persuaded on the totality of the evidence that MI had established there were substantial grounds for believing he would be subjected to torture if he were refouled to Pakistan.

61.  For the same reasons, the Adjudicator held MI’s claim under BOR3 Risk failed. The Adjudicator was not persuaded that MI would be subjected to ill-treatment as feared or any such ill-treatment would reach the minimum level of severity contemplated under BOR3. He found the evidence as a whole did not establish even to the low standard applicable that MI would face a genuine and substantial risk of being subjected to such ill-treatment.

62.  The Adjudicator also rejected MI’s claim under Persecution Risk. He was satisfied MI was a person outside the country of his nationality and was unwilling/unable to return to that country or to avail himself of the protection of that country. MI feared persecution on grounds of political opinion and, perhaps, as a member of a particular social group (his family), but the Adjudicator found his fear was to a very large extent based on speculation, which in turn was often based on hearsay evidence. Whilst there was COI that indicated corruption existed within the police force in Pakistan, and false accusations of blasphemy were, on occasion, made out of personal antipathy or for political reasons, this did not advance MI’s case since his claim was based largely on his own unsupported assertions and on speculation/theory. The Adjudicator found MI failed to establish even to the low standard required that he would be persecuted if he were refouled to Pakistan, or his claimed fear of persecution on grounds of political opinion was well-founded. The Adjudicator was not persuaded by the claimed fear of persecution by MI as a member of his family over the dispute in respect of the Plot amounted to a Convention reason or it was well-founded.

63.  For all the above reasons, the Adjudicator concluded MI’s claim for non-refoulement protection failed on the aforesaid applicable grounds, and his appeal/petition was rejected with the DOI Decision confirmed.

V.  APPLICATION FOR EXTENSION OF TIME

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

“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 of 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.”

65.  The draft Amended Form 86 alleged MCAL did not have early involvement, and there were good reasons for an extension of time (italicised parts were drawn from the letter from the Legal Aid Department (“LAD”) to MCAL dated 8 November 2016, “LAD Letter”):

(a)	MI was notified of the Adjudicator Decision by notice dated 11 May 2015. On/about 19 May 2015, MI made an application to the Director of Legal Aid (“DLA”) for challenging the Adjudicator Decision. MI signed an undertaking to provide further documents within 7 days. The LAD wrote to the Torture Claim Appeal Section / Non-refoulement Claims Petition Office for details and background of the case. On 20 May 2015, MI produced the requested documents to the LAD. On 28 May 2015, the LAD received reply from the Torture Claim Appeal Section / Non-refoulement Claims Petition Office. The DLA took time to consider the application, and the offer of legal aid to MI was sent by post on 3 June 2015 (“3/6/15 Letter”). MI did not receive such letter/offer because the letterbox at MI’s address was broken with no front cover to protect it from visitors or other residents (“Letterbox”).
(b)	On 3 July 2015, the LAD called MI to follow up and enquire whether he received the 3/6/15 Letter to which MI said he had not, whereupon the LAD invited MI to attend their offices (“LAD Offices”) to obtain a copy of the offer. On 6 July 2015, MI attended the LAD Offices and obtained a fresh copy of the offer.
(c)	On 5 August 2015 MI returned the signed Acceptance of Offer of Legal Aid Certificate to the LAD (“Acceptance”), and on 10 August 2015 he made a written request for assignment of solicitor. On 14 August 2015, the LAD issued the Legal Aid Certificate. By an assignment letter dated 14 August 2015 (which MI received on 19 August 2015) (“Assignment”), MCAL was assigned as MI’s legal representatives. On 1 September 2015, MCAL wrote to the LAD to acknowledge receipt of the Assignment.
(d)	With the Assignment, MCAL “received the Recognizance of [MI] dated 11 July 2015 and various correspondence between [DLS] and the [Board] enclosing the Notice of Appeal / Petition Non-refoulement Claim dated 19 August 2014, Grounds of Appeal/Petition dated 25 August 2014 and the [Adjudicator Decision] dated 11 May 2015”, and attempted unsuccessfully to contact MI on 24 and 27 August 2015.
(e)	On 31 August 2015, MCAL wrote to MI requesting him to attend their offices (“MCAL Offices”) as soon as possible, which letter MI received despite his broken Letterbox. On 7 September 2015, MI contacted MCAL and scheduled a meeting for 10 September 2015. At the conference between MCAL and MI on 10 September 2015, MCAL told MI about the documents enclosed with the Assignment. MCAL considered it necessary to obtain further documents in relation to MI’s non-refoulement claim, including all Interviews, DOI Decision and 2nd TCF etc for preparing the Form 86, but MI said he did not have them, could not remember where he had put them and could not locate them, so MCAL obtained his authorisation to seek such documents. MI also told MCAL he intended to contact his family in Pakistan to obtain further supporting documents “if required”. MCAL then advised MI to obtain a valid/official affidavit signed by the 8 eye-witnesses to the Shooting Incident, court documents in relation to the false blasphemy claim, and relevant medical reports.
(f)	On 10 September 2015, MCAL sent a letter to the ImmD requesting all documents relation to MI’s torture claim/petition applications. On 15 September 2015, ImmD contacted MCAL to enquire about the scope of their request. On 16 September 2015, MCAL wrote to the ImmD to reiterate their request for all documents relating to MI’s non-refoulement claim.
(g)	On 6 October 2015, MCAL tried to contact MI to enquire about the progress of his efforts in obtaining information from Pakistan, but could not reach him. Multiple calls were made on 7-8 October 2015 to no avail. On 16 October 2015, MCAL reached MI by telephone, and MI said he had difficulty in obtaining documents from Pakistan as he had limited means to make frequent telephone calls to Pakistan.
(h)	On 16 October 2015, the ImmD informed MCAL that the documents in relation to MI’s torture claim (“ImmD Documents”) were ready for collection upon payment of copy charges. On 23 October 2015, MCAL collected the ImmD Documents.
(i)	On 29 October 2015, MI contacted MCAL by telephone to schedule a conference, which was fixed for 3 November 2015. MI telephoned MCAL at/about 11:30am on 3 November 2015 to say he could not attend the meeting due to “financial difficulties”, so MCAL scheduled another meeting on 10 November 2015. At such meeting on 10 November 2015, MI told MCAL he was unable to obtain any document from Pakistan.
(j)	MCAL then “spent one month to peruse the papers and draft the first draft of Form 86 on 23 November 2015”. On 30 November 2015, MI had a conference with MCAL and made comments on the 1st draft of the Form 86. On 10 and 14 December 2015, MCAL tried to contact MI but could not reach him. On 17 December 2015, MCAL wrote to MI requesting him to attend the MCAL Offices as soon as possible. Upon receiving such letter, MI contacted MCAL on 21 December 2015 informing them he had no money to top up value for his SIM card, and a meeting was scheduled for 29 December 2015. At such meeting on 29 December 2015, MI finalised his instructions. Form 86 was filed on 20 January 2016.

66.  In the MI 1^st Aff, MI exhibited the ImmD Documents being the 4^th Interview, DOI Decision, Notice of Appeal/Petition for Non-refoulement Claim dated 19 August 2015, Adjudicator Decision, 2002 FIR, letter dated 2 November 2002 from MI’s father to the SSP for change of police officer, and copy Affidavit.

67.  In the MI 2^nd Aff, MI confirmed the truth of the contents of the draft Amended Form 86, and produced clean copies of documents from the hearing bundle for the Hearing before the Adjudicator obtained from the DLS. MI confirmed the matters in paragraph 65 above, and exhibited a copy LAD Letter and copy letter dated 13 January 2017 from MCAL to LAD asking for confirmation as to “what precise documents [MI] submitted to the [LAD] in support of [his] application” for legal aid.

68.  As alluded to above, the DOI opposed MI’s application for extension of time to seek leave to apply for judicial review. Mr Yu 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; and

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

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

69.  Form 86 was filed on 20 January 2016, so it was some 8 months after the Adjudicator Decision dated 11 May 2015 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,[4] 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. The burden is on the applicant to show he has a good reason rather than a good excuse for the delay.[5]

70.  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, are 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]

71.  In the draft Amended Form 86, MI tried to justify the delay by reason of the time spent on applying for and obtaining legal aid. I agree with Mr Yu there is 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] Indeed, the mere fact that legal aid or pro bono assistance is not available is not sufficient basis for extension of time; it is only one of the factors in the court’s consideration of whether there are good reasons to justify an extension of time notwithstanding the delay.[11] In AW 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 notwithstanding such matters might be beyond the applicant’s control.[12] In Tiwari Amandeep v Torture Claims Appeal Board and Director of Immigration,[13] 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 that it still beyond the applicant and his legal advisors to act with due diligence.

72.  As seen above, where an applicant attributes the delay to the process of obtaining legal aid, it is incumbent on him to demonstrate he has exercised due diligence in making and processing that application.[14] As

P Li J said in the first instance decision in AW, the time spent applying for legal aid is not normally a valid ground unless there is evidence to show that the delay is entirely due to the application process and the applicant has acted promptly in the process.[15] Besides, it is the applicant’s duty, if he wishes 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 is verified or confirmed by the relevant legal aid officer who may provide such further information/explanation as may be appropriate or necessary either by way of a letter or an affidavit.[16] Here, the chronology of the purported steps taken by MI to prosecute his application for leave to apply for judicial review (“Chronology”) can be seen in paragraph 65 above, but the LAD Letter only verified events pertaining to the LAD marked in italics therein.

73.  Mr Barnes accepted there was delay in filing Form 86. In my view, the relevant delay was from expiry of the 3-month period under Order 53 rule 4(1) of the RHC until Form 86 was filed, ie about 5 months in this case. Mr Barnes suggested the relevant period was from the date MCAL received the Assignment (ie 19 August 2015) and the date when Form 86 was filed (20 January 2016), and he relied on Lam VP’s observations in paragraph 6 at page 403 in AW. I disagree. In AW, Lam VP stated he agreed with Kwan JA’s judgment which he had read in draft (page 398), and he considered the whole period of delay including the time taken to apply for and obtain legal aid up to the filing of the notice of application for leave to apply for judicial review (pages 407-410). At paragraph 6 on page 403, Lam VP focused on “the explanation of the delay on account of pending cases in the Court of Appeal” at that time, and it was in relation to such pending cases that “the relevant period” should be the time between 4 October 2012 (when legal aid was granted to the applicant) and 10 May 2013 (when the applicant made an application to court for an anonymity order). But, in my view, this did not alter the fact that the whole period of delay (and in the present case it was more than 5 months) should be considered.

74.  Mr Barnes must have recognised this too because (a) his written submissions stated that the period of delay could be categorised as the time taken to obtain legal aid and to assign solicitors, the time taken to obtain instructions from MI, and the need to obtain additional documents before commencing proceedings, (b) he recognised G Lam J in Re Thomas Lai held that whether the applicant has pursued his application for legal aid with due diligence is relevant to the exercise of the court’s discretion, and (c) he submitted that the Court of Appeal in AW did not go so far as to say the time taken to apply for and obtain legal aid is not relevant.[17] Plainly, the relevant period on the issue of delay should not merely count from the time when solicitors assigned by the LAD received their notice of assignment. In his oral submissions at the Hearing, Mr Barnes was constrained to accept the whole period of delay (including the period prior to the Assignment in the present case) came under scrutiny, but the period between the Assignment and Form 86 was pertinent for considering whether there was any detriment/ prejudice. I will turn to the matter of detriment/prejudice below.

75.  Mr Yu agreed that a delay of more than 5 months was not the worst scenario, but he reminded that extension of time was refused in AW that involved a delay of about 6 months and in Re Thomas Lai that involved a delay of slightly over 2 months. However, I find it more useful to turn to the particular circumstances of this case.

76.  Here, MI applied for legal aid on 19 May 2015, ie 8 days after the Adjudicator Decision. Even though the DOI did not know when the Adjudicator Decision came to MI’s attention, Mr Yu fairly accepted any delay in making the application for legal aid was insignificant, and the application was processed within a reasonable time such that the legal aid offer was made on 3 June 2015. I also agree with Mr Yu that if solicitors were quickly assigned and acted promptly thereafter, there was good prospect that Form 86 have been made within the 3-month period (ie on/before 10 August 2015). Having carefully reviewed the Chronology in respect of the period after 3 June 2015, I am not persuaded due diligence had been exercised.

77.  It was said (a) MI did not receive the 3/6/15 Letter due to the broken Letterbox, (b) it was only when the LAD contacted MI on 3 July 2015 that MI realised he had not received the legal aid offer whereupon he attended the LAD Offices on 6 July 2015 (ie right after the weekend) to obtain a fresh copy of such legal aid offer, and (c) MI returned the signed Acceptance to the LAD on 5 August 2015. Mr Yu noted a month was lost between (a) and (b) above, and another month was lost between (b) and (c) above.

78.  For the 1^st lost month, MI explained he did not receive the 3/6/15 Letter because of the broken Letterbox. But there was little to show what MI did between 20 May and 3 July 2015 (ie about 1½ months) when he should have been anxious in following up closely with the LAD on his application for legal aid. There was no evidence he made any telephone call or physical visit to the LAD Offices to find out the progress in respect of his application. For the 2^nd lost month, MI offered no explanation at all as to why he returned the signed Acceptance to the LAD only 1 month later.

79.  It was said MCAL received the Assignment on 19 August 2015 by which time the 3-month period for filing Form 86 had expired. In such circumstances, neither MI nor MCAL could adopt a lax attitude in filing the Form 86. Indeed, MI who was under legal advice must have known that such 3-month period had expired, and that he would need to act urgently.

80.  But subsequent events in the Chronology showed lack of due diligence on MI’s part. Despite expiry of such 3-month period, a meeting between MCAL and MI was held only 3 weeks later on 10 September 2015. Mr Yu asked this court to view with circumspection MI’s allegation that he had lost and could not locate “all” documents in relation to his non- refoulement claim. Mr Barnes tried to draw a distinction between MI’s situation and AW by saying MI affirmed that he had lost the 2^nd TCF and Interviews etc. But I note MI applied for legal aid 8 days after the Adjudicator Decision, and submitted certain documents to the LAD on the following day. In my view, MI must have known the Adjudicator Decision and other papers in relation to his non-refoulement claim were important documents that should be carefully retained for his intended challenge against the Adjudicator Decision. He did not offer any explanation as to the circumstances or likely circumstances in which all such documents were lost, and he did not say when he discovered he had lost all such documents and what he did upon such discovery. He also did not say whether he was given the hearing bundle for the hearing before the Adjudicator[18] (although Mr Yu submitted one was provided – see paragraph 131 below), and if so, how he could have lost such a large bundle of documents.

81.  Be that as it may, MCAL did have to hand various documents the LAD provided together with the Assignment (see paragraph 65(d) above). Mr Barnes submitted it was necessary and reasonable for MCAL to obtain the ImmD Documents that were placed before the Adjudicator, especially when the Adjudicator was critical of the copy 2002 FIR and also the Affidavit. But as noted by the Court of Appeal at page 407 in AW, the most relevant documents were the DOI and Adjudicator Decisions.[19] Even though MCAL only had the Adjudicator Decision but not the DOI Decision, I note MI made no application for leave to challenge the DOI Decision in the present case. With copies of the Notice of Appeal / Petition Non-refoulement Claim dated 29 August 2014 and the Grounds of Appeal/Petition dated 25 August 2014 available, I agree with Mr Yu there was sufficient material for MCAL to at least take substantive instructions from MI and to start working on the draft Form 86 instead of waiting until after collection of the ImmD Documents to spend another month to peruse the papers and prepare Form 86.

82.  It also appeared MI contended he needed time to obtain supporting documents from Pakistan “if required” which contributed to the delay. Whilst MCAL advised MI to obtain (a) valid/official affidavit signed by 8 eyewitnesses to the Shooting Incident, (b) court documents in relation to the false blasphemy case, and (c) relevant medical reports, MI did not elaborate on what documents he actually tried to search for in Pakistan. Anyway, it was clear from paragraph 25 of the Adjudicator Decision that MI had already had asked for medical report in relation to his injuries from the Shooting Incident, but the hospital had told his father it did not keep records for 10 years. Such assertion also appeared in paragraph 58 of the written submissions dated 10 October 2014 by Mr Chan, MI’s counsel, for the hearing before the Adjudicator (“Chan Submissions”).

83.  MI did not explain why he did not seek the court documents in relation to the false blasphemy case and/or other medical reports from Pakistan earlier when he was legally represented by the DLS during the first-tier screening by the DOI and/or at the hearing before the Adjudicator, or alternatively whether he had previously made efforts to seek such documents but had been unsuccessful (and if so, what was the difficulty).

84.  In my view, during the first-tier screening process by the DOI, MI 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 1^st TCF 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 of 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 still have opportunity to do so. Nevertheless, upon return of the completed torture claim form, you must 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 the completed torture claim form.

……

8. 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 identity or the claim may jeopardize the assessment of your claim or your appeal / petition (if any). You should also be aware of this and any failure to answer questions of importance to your claim may damage your credibility and jeopardize the assessment of your torture claim.

……

Points to note:

……

You may submit the documents supporting the claim that are not readily available at this stage after the return of this form.  You must clearly indicate such intention in your answer to Question 32.”

85.  In the Notice of Appeal / Petition Non-refoulement Claim dated 19 August 2014, the instructions clearly stated as follows:

“• It is important that you include ALL information you wish the Board/Adjudicator to consider in this Notice as you may not be allowed to submit further information subsequently unless with the permission of the Board/Adjudicator.”

Further, it was stated under “Section 2: Appeal/Petition” that:

“It is your responsibility to establish your case. You must ensure that all information, evidence and submissions that you wish to be considered in support of your appeal/petition are provided to the Board/Petition Office together with this Notice. You should note that as the Board/Adjudicator has the power to review the merits of the case, it may consider the same evidence that was before an immigration officer. The Board/Adjudicator may also consider evidence that was not before an immigration office if (a) the evidence relates to matters that have occurred after the decision being appealed/petitioned against was made; (b) the evidence was not reasonably available before the decision being appealed/petitioned against was made; or (c) the Board/Adjudicator is satisfied that exceptional circumstances exist that justify the consideration of the evidence.

If you are sending any other documents with this Notice to support your appeal/petition, please list them here (please provide English or Chinese translation of any evidence or documents which is/are in other language):

I reserve my right to submit further supporting document(s).”

MI did not explain what “further supporting documents” he had in mind when he completed this form that he intended to (but eventually did not) place before the Adjudicator.

86.  Despite such reminders, paragraph 132 of the Chan Submissions to the Adjudicator stated that MI “has to the best of his ability provided all information at his disposal to establish his non-refoulement claim. Reliance is placed on the Claim Forms, supporting documents, legal submissions and answers given at the 4 screening interviews with the [ImmD], the Grounds of Appeal and skeleton argument” (my emphasis). There was no suggestion that MI wished to seek “further supporting documents” or that he was in the course of seeking such further documents (and if so, what those further documents were, how they would be relevant to his appeal/petition and the likelihood of obtaining such documents). Instead, paragraphs 59 and 62 of the Chan Submissions emphasised “[the] difficulties of proof faced by [MI] should be fully appreciated to meet the high standards of fairness required”. In my view, MI did not have any good reason for the delay caused by the alleged futile attempt to seek further documents.

87.  In IL v Torture Claims Appeal Board & anor,[20] the applicant (also a Pakistani national) was also represented by Mr Barnes on the instructions of MCAL as assigned solicitors. There, the applicant also gave the explanation he had lost “all” his documents. The learned judge held as follows:

“49. The Applicant’s explanation for the delay in filing the Form 86 is because he had lost all his documents. The loss of the Applicant’s papers and subsequent replacement resulted in a delay of 8 weeks, that is from 21 August 2015 when the Applicant informed the solicitors of the loss until 23 October 2015 when (it is presumed) the solicitors collected the replacements from the DOI.

50. I am in agreement with Mr Sunny Li, Government Counsel for the Putative Interested Party that there is no explanation exactly what documents were lost and what further information was required. Regardless, the processes that were put in place by the solicitors for retrieval of these documents form the DOI on 23 October 2015 seems to me to be a futile exercise and no more than a waste of valuable time in a situation where time is of the essence.

51. The relevant documents are the decisions of the DOI, the Notice of Appeal/Petition and, in this case, that of the Adjudicator’s Decision. Copies of these should have been in both the Applicant’s possession and in the DLA’s case file. The Applicant was represented by the Duty Lawyer Service (DLS), the quickest and most efficient way to retrieve the documents or to find assistance was from the DLS. This was not done by the firm.

52. In the Applicant’s third affirmation he said that he had been provided with a copy of the hearing bundle for the appeal by the TCAB. After seeking legal advice from a law firm in Tsim Sha Tsui 2-3 days after the appeal hearing he remembers taking a bus and thinks he may have lost the bundle on the bus.

53. I find it an extraordinary claim that he had lost “all” his documents. He was well aware that the Decision was important as he went to seek legal advice. Despite losing these important documents, I find it hard to accept that the Applicant did nothing at all about it.”

Whilst I accept each case must turn on its own facts, I note with interest that in IL and in the present case, MCAL adopted the same practice of seeking the ImmD Documents from the ImmD instead of writing directly to the DLS to obtain the non-redacted hearing bundle before the Adjudicator. Here, they only approached the DLS sometime after Form 86 was filed (since MI was not in a position to exhibit such hearing bundle to the MI 1^st Aff made on the same day as when Form 86 was filed). The MM Aff accepted this method of seeking copy documents had drawn judicial criticism, and in my view it contributed to the overall delay. Further, at the very least, the applicant in IL offered a possible explanation as to how he lost “all” his documents (although the court found such explanation unconvincing), but there was none from MI.

88.  Further, it was after some failed attempts by MCAL to contact MI and more than a month after the meeting on 10 September 2015 that MI told MCAL on 16 October 2015 he had difficulty in obtaining further supporting documents as he had limited means to make frequent telephone calls to Pakistan, and it was another 3 weeks later on 10 November 2015 that he told MCAL in meeting he was unable to obtain any document from Pakistan. It was only then that MCAL spent further time to peruse the papers and to prepare the 1^st draft of Form 86 by 23 November 2015. But MI did not explain in the Chronology the actual reason why in the end the alleged further documents could not be secured from Pakistan.

89.  In my view, there was nothing to show any real likelihood that the alleged further documents would be forthcoming if further time was spent dwelling on the matter, and MI himself noted he was in financial difficulties which made it quite unlikely for him to secure such documents. I find that, given the expiry of the 3-month period, a more realistic view should have been taken much earlier about the unlikely possibility of obtaining further documents from Pakistan, and steps should have been taken more promptly to proceed with preparing/filing Form 86. After all, if further documents were obtained in future, there would have been arguable basis to seek leave to amend Form 86 as filed, which MI ultimately did by way of the Summons. I can do no better than to reiterate apposite observations by the learned judge in IL:

“55. It was submitted by Mr Peter Barnes, counsel for the Applicant, that the Applicant’s legal representatives took appropriate and entirely necessary steps to obtain documents and to consider the matter before the drafting and filing of the Notice. With respect, I do not agree. It is apparent that there was a clear lack of urgency from those acting for the Applicant.

56. The solicitors could have made the application for judicial review in some urgency and then sought leave to amend, as they ultimately did do.

57. It would appear to me that a firm with experienced solicitors, in applications such as this, should have full knowledge of the urgency in light of the time restrictions imposed by legislation and the consequences for the lateness and delay.

58. I do not accept the explanation that the Applicant delayed the application as he needed to find further documents in support from family and friends in Pakistan. Any such documents were not made available to the Adjudicator and hence he would have been advised that these documents hardly affect the legality of the Decision. It was not explained what these further documents were. As there was an urgency to the application, there was no requirement at that stage for any additional information and/or documents.

59. I find these documents are an excuse rather than a genuine reason for the delay.”

90.  But after the conference with MCAL on 30 November 2015 for MI to comment on the 1^st draft of Form 86, another month elapsed before there was a further meeting on 29 December 2015 to finalise instructions. During the intervening period, MCAL was unable to reach MI by telephone and had to write to him on 21 December 2015. MI claimed he had no money to top up value for his SIM card, but plainly he was able to find some alternative means to telephone MCAL when he received the letter dated 21 December 2015. By this time, MI should be anxious to proceed urgently, and if he could not be contacted by his own telephone, it was incumbent upon him to find other means to contact MCAL, eg attending MCAL Offices, to finalise instructions. Further, there was no explanation for the delay of more than 3 weeks from 29 December 2015 to 20 January 2016 for filing Form 86.

91.  In my view, the above matters showed MI had not been diligent in following up on his own case to apply for leave to apply for judicial review.

(b)  Detriment to good administration and prejudice

92.  Mr Yu submitted the Administration was burdened with prolonged responsibility of screening claims of and caring for non- refoulement claimants, and the community was concerned that legitimate non-refoulement claims should be dealt with promptly.[21] I agree that delay in bringing judicial review proceedings and/or to allow extension of time where there has been inexplicable undue delay plainly prejudice good administration in the exercise of effective immigration control.

93.  In Po Fun Chan v Winnie Cheung,[22] 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[23] 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”.[24] 

94.  I note at the outset allegations that the delay would 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.[25] I have found there had been undue delay in taking out Form 86, and there was no good reason to account for the delay. But even if I am wrong and the aforesaid allegations arose for consideration, I find MI’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”.[26]

95.  Mr Barnes did not cite any substantial hardship to, or substantial prejudice to the rights of, MI in any refusal to extend time. After all, there was no question that MI could remain in Hong Kong pending processing of his claim for non-refoulement based on other absolute and non-derogable rights (as explained in paragraphs 97(a) and 100-111 below).

(c)  Merits of the substantive application

96.  For present purposes, I am prepared to consider the intended grounds of judicial review in the draft Amended Form 86. Mr Yu submitted that those grounds lacked merits, which provided further reason why time extension ought to be refused.

97.  In the draft Amended Form 86, MI raised several intended grounds of review:

(a)   error of law in failing to consider all applicable grounds of protection (Ground 1)
Mr Barnes submitted the DOI/Adjudicator Decisions only considered Torture, BOR 3 and Persecution Risks, but not other non-delegable rights, especially MI’s right to life under Article 2 of section 8 of BORO (“BOR2”) and right to equality before and equal protection of the law under Article 22 of section 8 of the BORO (“BOR22”). The Court of Final Appeal in Ubamaka v Secretary for Security[27] cited with approval the principle in Soering v United Kingdom[28] that a sufficiently established threat of violation of Article 3 of the Refugee Convention by the receiving country could constitute a ground for restraining the government from proceeding with removal/deportation.[29] Such principle should also apply to other absolute and non- delegable rights where the evidence establishes a real risk that such rights will or may be violated upon return of the person seeking such protection.[30] MI argued the Adjudicator’s failure to have regard to potential violation of BOR2 and BOR22 (which were absolute and non-delegable rights) if he were returned to Pakistan constituted an error of law which could be corrected by judicial review,[31] and the modifications to the Practice Guide for conduct of Appeals/Petitions constituted an acceptance by the Board / Petition Office of the inadequacy of the appeal/petition process in relation to such rights.[32]

(b)   error of law in applying an incorrect test for non-refoulement protection (Ground 2)
MI claimed that the Adjudicator’s understanding of a two-limb test for establishing Persecution Risk for non-refoulement under the USM as set out in paragraph 10 of the Adjudicator Decision:

“(a) he, owing to a well-founded fear of being persecuted on account of one or more of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country [Refugee Convention, Article 1A(2)]; and

(b) his life or freedom would be threatened on account of his race, religion, nationality membership of a particular social group or political opinion should he be expelled or returned to the frontiers of a Risk state”

was incorrect. It was said there was no two-limb requirement, and Lord Goff in R v Secretary of State for the Home Department, ex parte Sivakumaran had addressed the argument that a person seeking protection under the Refugee Convention must show he had to meet the definition of “refugee” under article 1 thereunder and additionally had to fall within article 33 thereunder as follows:[33]

“The Master of the Rolls suggested, ante, p 965E-F, that, even if the Secretary of State decides that an applicant is a refugee as defined in article 1, nevertheless he has then to decide whether article 33, which involves an objective test, prohibits a return of the applicant to the relevant country. I am unable to accept this approach. It is, I consider, plain, as indeed was reinforced by Mr Plender with reference to travaux préparatoires, that the non-refoulement provision in article 33 was intended to apply to all persons determined to be refugees under article 1 of the Convention. ……”

To the extent the Adjudicator adopted an approach inconsistent with Lord Goff’s observations, MI argued he erred in law and the court should intervene to quash the Adjudicator Decision.

(c)   procedural unfairness in that the Adjudicator made irrational findings of fact (Ground 3)
The Adjudicator made a general finding in the Adjudicator Decision that MI’s evidence was lacking in credibility and unpersuasive, so the question was whether the reasons he gave supported such finding. MI suggested the Adjudicator’s findings dealing with (i) the Shooting Incident in 2002, (ii) the false blasphemy charge in 2006 and (iii) the later events could be impugned for procedural unfairness. Details of MI’s contentions would appear in paragraph 124-131 below.

(d)   failure to consider the extended form of state acquiescence (Ground 4)
MI claimed the Adjudicator failed to give weight to the presence of state acquiescence in his case which likely contributed to his reaching an unfair decision. Under the extended concept of state acquiescence as explained by McWalters JA in Re MI,[34] it was said the Adjudicator failed to take into consideration the behavior of the police towards MI, ie MI’s claim that the police conspired to falsely accuse him of blasphemy, and that he was stripped, assaulted, beaten up and forced to confess to the false charge as conspired by the police, such that there was failure of due diligence on the part of the State or its public officials such as the police.

Mr Barnes’ written submissions did not rely on Ground 4 although he maintained such ground in his oral submissions.

98.  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.[35] As I have explained in RM v Gerard Paul Muttrie, Esq & anor,[36] “…… [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,[37] and (c) whether the substantive decision satisfied the enhanced Wednesbury[38] test”.[39]

99.  Further, it was held in Re Thomas Lai at pages 17-18 that the court in considering whether to exercise the discretion to grant extension of time is entitled, in an appropriate case, “to delve more deeply into the merits. Its function is not just to filter out the unarguable, but also to see whether indulgence in the form of extension of time should be granted to the applicant”.

100.  In respect of Ground 1, there was no dispute the DOI and Adjudicator considered Torture, BOR 3 and Persecution Risks and not other absolute and non-delegable rights under the BORO in the DOI /Adjudicator Decisions. But interestingly, despite MI’s present complaints and notwithstanding that at the material time he was legally represented, his appeal/petition to the Board/Adjudicator also rested on non-refoulement protection from Torture, BOR 3 and Persecution Risks rather than other applicable grounds.

101.  On 16 December 2016, the DOI wrote to MI inviting him “to submit additional facts (if any) which [MI considers] relevant to [his] non-refoulement claim on all applicable grounds for non-refoulement as set out above (including any other absolute and non-derogable rights under the [BORO], such as its [BOR2]) (in case [MI] omitted any relevant facts before because of any misunderstanding on what “all applicable grounds” means) within 14 days of the date of this letter” (“DOI Letter”). The DOI Letter went on to say a further screening interview might be arranged if considered necessary, and the DOI would “then provide a further written decision of [MI’s] non-refoulement claim on any other applicable grounds ……, taking into account any new facts submitted after this letter and all fact submitted previously under USM …… For the avoidance of doubt, [the DOI Decision] already made on [MI’s] risk of being subjected to torture, CIDTP and persecution grounds upon return will not be affected”. Pursuant to the DOI Letter MI submitted further information on 29 December 2016, but as at the time of the Hearing the DOI had not yet made any decision on other applicable ground(s) (“DOI Further Decision”).

102.  Section 5 of the BORO (“Section 5”) provides as follows:

“(1) In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, measures may be taken derogating from the Bill of Rights [“BOR”] to the extent strictly required by the exigencies of the situation, but these measures shall be taken in accordance with the law.

(2) No measure shall be taken under subsection (1) that –

(a) is inconsistent with any obligation under international law that applies to Hong Kong (other than an obligation under the International Covenant on Civil and Political Rights [“ICCPR”]);

(b) involves discrimination solely on the ground of race, colour, sex, language, religion or social origin; or

(c) derogates from articles 2, 3, 4(1) and (2), 7, 12, 13 and 15.”

103.  Section 11 of the BORO (“Section 11”) provides as follows:

“As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation.”

104.  Mr Yu agreed BOR2 is non-delegable. The Court of Final Appeal in paragraphs 113-116 at pages 783-784 in Ubamaka rejected the respondent’s argument that the operation of BOR3 excepted immigration matters by operation of Section 11, and held that Section 11 must be given a purposive interpretation such that its operation is qualified by Section 5 (ie its operation cannot exclude BOR3 which is an absolute and non-derogable right protected under Section 5(2)(c)) such that the DOI could not refoule persons who faced risk of violation of BOR3 (as the DOI could not except the operation of BOR3 for immigration matters). By analogy, the DOI accepted this applied to BOR2, and the DOI Letter was therefore issued to MI.

105.  As regards BOR22, MI contended it is also an absolute and non-derogable right and hence a ground for non-refoulement, but Mr Yu submitted such contention was not arguable in the Po Fun Chan sense.

106.  Mr Barnes submitted BOR22 recognised and incorporated into Hong Kong law the fundamental principle that:

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

Mr Barnes suggested the prohibition element in BOR22 had been described by the United Nations Human Rights Committee (“UNHRC”) as one of the elements from which derogation could not be permitted in any circumstances,[40] and that non-discrimination as well as equality before and equal protection of the law together constituted a “basic and general principle” relating to the protection of rights.[41] Mr Barnes submitted the General Comments by the UNHRC were particularly pertinent, and referred to Koon Wing Yee v Insider Dealing Tribunal[42] where the Court of Final Appeal held that having regard to paragraph 7 of General Comment No 13 on article 4 of the ICCPR published by the UNHRC at its 21^st session in 1984, proof beyond reasonable doubt was the appropriate standard to be applied for the purposes of Article 11 of the BOR. Sir Anthony Mason NPJ said at p 406 as follows:

“101. The General Comments are a valuable jurisprudential resource which is availed of by the Committee in its adjudicative role. While the General Comments are not binding on this Court, they provide influential guidance as to how the ICCPR is applied and will be applied by the Committee when sitting as a judicial body in making determinations.”

107.  Mr Barnes submitted that (a) MI maintained he was denied protection by the authorities (including the police) in part due to political influence of his enemies over the authorities, (b) corrupt practices and political influence were endemic in Pakistan even though the COI suggested theoretically all persons were equal before the law, and (c) what mattered was whether the problems still remained even though citation by a reporting State often referred to provisions of the constitution and laws guaranteeing equality before the law,[43] hence the Adjudicator erred in law by failing to have regard to Article 22.

108.  Mr Barnes noted this was impliedly acknowledged by the DOI and the Board/Adjudicator by way of modifications to the procedure/ practice. The DOI’s Notice Relating to Amendment of USM Documents dated 12 September 2016 explained that Ubamaka held that if there are substantial grounds for the DOI to believe there is a personal and substantial risk of a claimant’s absolute and non-derogable right under BOR as set out in section 8 of the BORO (the case in point being the right not to be subjected to torture or CIDTP under BOR3) being violated in the state should the claimant be refouled, it constitutes a ground for restraining the Hong Kong government from removing the claimant to that state. Thus, under the USM, the DOI should assess whether a claimant, if removed from Hong Kong, would face a personal and substantial risk of his absolute and non-derogable rights under the BOR being violated at another country (eg right to life under BOR2 and torture or CIDTP under BOR3) in addition to the risk of being subjected to torture as defined under Part VIIC of the IO. Consequently, the “Notice to Persons Making a Non-refoulement Claim”, “Non-refoulement Claim Form”, “Supplementary Claim Form” and “Processing Non-refoulement Claims under the USM” were updated to ensure the above position was clearly communicated to all claimants as from 12 September 2016. The notice also set out the transitional arrangements in relation to the claim for non-refoulement protection on “the ground of [BOR2] ……”, and in respect of claimants whose claims had been adversely decided by the DOI (as in the case of MI), the relevant transitional arrangements were those as explained in the DOI Letter (see paragraph 101 above).

109.  In DOI’s Notice to Persons Making a Non-refoulement Claim dated 12 September 2016, the DOI reiterated that “under USM, ImmD would assess whether a claimant, if removed from Hong Kong, would face a personal and substantial risk of his absolute and non-derogable rights under the [BOR] being violated at another country (eg right to life under [BOR2] and torture or CIDTP under [BOR3])” (my emphasis).

110.  The Board’s / Petition Office’s Practice and Procedure Guide of the Administrative Non-refoulement Claims Petition Scheme (“Petition Guide”) dated 12 September 2016 mirrored the observations on Ubamaka in the DOI’s Notice Relating to Amendment of USM Documents (see paragraph 3.2 therein), and went on to say in paragraph 21.2 therein as follows:

“A non-refoulement claim must be accepted as substantiated if there are substantial grounds for believing that there is a genuine and personal risk that an absolute and non-derogable right under the [BOR] (including BOR 2 and BOR 3) of the petitioner would be violated at the Risk State if the petitioner were removed or surrendered there.” (my emphasis)

111.  Mr Barnes submitted that the DOI’s stance that BOR22 was not a non-derogable right could not be supported as the aforesaid modified procedural guidelines in relation to “other absolute and non-derogable rights” were not limited to BOR2, (b) Ubamaka at paragraphs 134-140 at pp 788-789 made clear the decision in that case was confined to BOR 3 Risk, and (c) DOI could not speak for the Board who adopted a neutral stance for present purposes and who might adopt a stance different from that of the DOI (ie that BOR22 was not a non-derogable right) on any appeal/petition from a decision by the DOI.

112.  On the other hand, Mr Yu noted the rights guaranteed by BOR22 were not rights identified in Section 5(2)(c). Mr Yu reminded this court of Ribeiro PJ’s observations at p 789 in Ubamaka as follows:

“140. It is also important to note that some of the case-law [from the United Kingdom courts and the European Court of Human Rights] holding that certain rights additional to those listed in the relevant Articles[44] falling short of CIDTP “cannot be excluded” from being considered non-derogable and/or absolute must be treated in our jurisdiction with great caution especially in the context of deportation or removal [ie refoulement] because of the necessity to take into account of [Section 11]” (my emphasis)

Mr Yu further reminded that MI did not cite any case law to support his proposition that BOR22 is an absolute and non-derogable right that excludes the operation of Section 11.

113.  It was said MI’s reliance on paragraph 8 of CCPR General Comment No. 29: Article 4: Derogations during a State of Emergency (see footnote 40 above) was misplaced because even though paragraph 4 of such General Comment stated that any measures derogating from the ICCPR must be limited to the extent strictly required by the exigencies of the situation, which reflected the principle of proportionality, paragraph 8 went on to say that a measure derogating from the ICCPR would only be justifiable if did not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.  Mr Yu submitted this was made clear by the last sentence in paragraph 8 which stated that “[in] particular, this provision of article 4, paragraph 1, must be complied with if any distinctions between persons are made when resorting to measures that derogate from the Covenant” (my emphasis), and it was in this context that the UNHRC stated “there are elements or dimensions of the right to non-discrimination that cannot be derogated” (my emphasis). Further, in making such statement, the UNHRC expressly acknowledged Article 26 of the ICCPR (as implemented in Hong Kong by BOR22) “have not been listed among the non-derogable provisions in article 4, paragraph 1 [implemented in Hong Kong by Section 5]”. On such basis, Mr Yu argued that such General Comment could/should not be elevated to the extent that the right guaranteed by BOR22 is an absolute and non-derogable right in other context (eg for the purposes of construing the scope of Section 11 and whether BOR 22 gives rise to a non-refoulement obligation). Mr Yu also reminded that in any event Section 5(2)(b) only prohibited derogation that involved discrimination solely on the ground of race, colour, sex, language, religion or social origin, but not derogation solely on the ground of political opinion.

114.  Mr Yu submitted that similarly the observation in General Comment No. 18 : Non-discrimination (see footnote 41 above) could not be elevated to be a statement that BOR22 (or Article 26 of the ICCPR) is an absolute and non-derogable right even though it is an important right and a “basic and general principle”.  In fact, paragraph 13 of such General Comment expressly recognised the right to equality was not absolute: “[finally], the Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant” (my emphasis).

115.  Mr Yu submitted Hong Kong courts should exercise great caution when considering discrete statements made by certain international bodies or overseas courts that a certain right recognised in the ICCPR was absolute or non-derogable since those statements were made in different context and might not be directly applicable to the issue of whether a particular provision of the BOR was caught by the immigration exception in Section 11.  It was said the scope/application of the immigration exception in Section 11 was a matter of Hong Kong law (and not international law), so the views of the Hong Kong courts would be more relevant, and in the context of BOR22 the Court of Final Appeal in Secretary for Justice v Yau Yuk Lung[45] held that the right to equality before the law was not absolute, and differences in legal treatment might be justified for good reason.

116.  Mr Yu added that Ribeiro PJ at pages 791-792 in Ubamaka held that rights protected by the BOR are generally subject to territorial limits, so the Hong Kong government had an obligation to safeguard the rights only in relation to persons within the territory of Hong Kong and subject to its jurisdiction. Whilst an exception was made in Ubamaka in respect of BOR3 because of the absolute and non-derogable character of such right and the severe/irreparable harm that BOR 3 Risk entailed, Mr Yu noted Ribeiro PJ at page 795 did not consider there were grounds for making such an exception in relation to Article 11(6) of the BOR.

117.  In light of above, Mr Yu submitted that BOR22 was neither absolute nor non-derogable under Section 5(2)(c), that not every violation of the right to equality before the law would necessarily give rise to severe/irreparable harm, that BOR22 only applies within the Hong Kong without extraterritorial application, and that it did not give rise to non-refoulement obligation on the part of the Hong Kong government.

118.  I should add that Mr Yu went further to say (as evident from Part IV above) the Adjudicator dismissed MI’s claim on the basis of lack of credibility. Mr Yu submitted MI’s case for non-refoulement was not that he did not have equality before the law solely on the grounds of his race, colour, sex, language, religion or social origin (see Section 5(2)(b) that did not refer to political opinion), but if MI claimed that failure by Pakistani authorities to protect his BOR22 right would expose him to risk of CIDTP, then his case would fall squarely under BOR3 Risk considerations, so (irrespective whether or not the application of BOR22 was excluded by Section 11) reliance on BOR22 would not add anything to MI’s case. Such argument by the DOI found favour with D’Almada Remedios J in paragraphs 64-66 in IL, so apart from the reason in paragraphs 119-121 below, MI would have an uphill task in demonstrating Ground 1 insofar as it related to BOR22 was arguable.

119.  I have summarised Mr Barnes’ and Mr Yu’s different contentions in relation to BOR22 out of deference to their submissions at the Hearing, but for reasons set out in paragraphs 120-122 below, I find it is unnecessary and inappropriate at this stage to come to any definitive determination as to whether Mr Barnes’ contentions were arguable.

120.  I agree with Mr Yu that it would be premature for this court to entertain Ground 1 by way of judicial review. The DOI had sent the DOI Letter to MI inviting further information for the DOI Further Decision in respect of MI’s non-refoulement claim on other applicable grounds. If MI is in due course aggrieved by any adverse DOI Further Decision (but whether or not such decision will be adverse is unknown as yet), MI may further appeal/petition to the Board/Adjudicator, and if such appeal/petition is refused, he can then apply for leave to apply for judicial review against the adverse decision (if any).

121.  In RI,[46] the applicant not only challenged the decision of the DOI on his torture claim, but also claimed under BOR2 (underpinned by article 6 of the ICCPR and article 39 of the Basic Law being the right not to be subject to CIDTP) and under the Refugee Convention and the Protocol relating to the Status of Refugees 1967 that had not been canvassed by the DOI and Adjudicator. The Court of Appeal noted that as a result of Ubamaka and C v Director of Immigration,[47] the DOI implemented a new composite USM screening scheme, that there was no suggestion the applicant was barred from submitting his CIDTP or refugee claims to the DOI for consideration under the new USM, or that he was subject to risk of removal pending the processing of these claims. Lam VP said as follows:

“9. Thus, the position is that there has not been any substantive determination of the CIDTP claim and the Refugee claim by the [DOI]. In these circumstances, we cannot see any reason why the Applicant should not be required to have his claims determined under the USM before the court entertains any application for judicial review regarding the same. Even though we are concerned with fundamental rights, the court is still exercising a supervisory jurisdiction in these kind of cases. Notwithstanding the need for the court to adopt an anxious scrutiny and to examine whether the high standards of fairness have been satisfied (see Secretary for Security v Prabakar (2004) 7 HKCFAR 187), the primary decision maker is the [DOI]. We do not find anything said in Ubamaka or C v Director of Immigration to contradict this fundamental principle.

10. In short, in the absence of a determination by the primary decision- maker when it is possible for an applicant to submit his or her CIDTP claim and/or Refugee claim to that decision-maker for consideration, it is premature for the court to entertain such claims by way of judicial review. To allow such claims to be advanced in the absence of a primary decision is to arrogate the court to the role of a primary decision-maker. This is not the proper role of the court in an application for judicial review.”

122.  In the circumstances, adopting the rationale as explained in RI, I am firmly of the view it would be premature to entertain Ground 1 by way of judicial review, and to arrogate the Court of First Instance to the role of a primary decision-maker. The interesting arguments raised by Mr Barnes and Mr Yu in relation to BOR22 (despite the difficulty I have noted in paragraph 118 above) should be left to the DOI and (where appropriate) the Adjudicator to determine on first-tier and second-tier decision-making before any application for judicial review is to be considered. In my view, Ground 1 is premature and not arguable.

123.  In respect of Ground 2, Mr Barnes relied on the contentions set out in paragraph 97(b) above. But Mr Yu submitted such legal argument was academic and not engaged in the Adjudicator Decision because the Adjudicator rejected MI’s claim on Persecution Risk on the basis of lack of credibility (see Part IV above) and failure to establish a well-founded fear of being persecuted (see paragraph 62 above). Quite simply, the Adjudicator did not accept MI’s claim that he came within the meaning of a “refugee” under Article 1 of the Refugee Convention. Mr Yu argued (and I accept) that since MI’s claim for protection under Persecution Risk fell at the first hurdle (ie the so-called “first limb”), the so-called “second limb” (whether or not it was indeed a further limb which contention the DOI did not accept) was neither here nor there in the present context. I note Mr Barnes also relied on Ground 2 on behalf of the applicant in IL, but in paragraphs 67-68 the learned judge disagreed with such argument and instead accepted the contentions by the DOI similar to those set out above. I find there is no merit in respect of Ground 2.

124.  In respect of Ground 3, Mr Barnes accepted such ground attacked the findings of fact made by the Adjudicator. He suggested the method by which the Adjudicator reached those findings were tainted by procedural unfairness and/or the conclusions were irrational, and since the Adjudicator failed to analyse the evidence correctly, the Adjudicator Decision must be quashed unless it would be just to let the decision stand.[48]

125.  Mr Barnes submitted that in asylum cases there was need for an approach that was scrupulously fair given the potential dire consequences of a flawed decision,[49] and procedural fairness in this context required the decision-maker to remember and apply the following principles:

(a)   the difficulties encountered by a claimant must not be underestimated, and every opportunity must be given to enable information to be put forward, and at appropriate times assistance be given bearing in mind the process is one of joint endeavor;

(b)   all relevant matters must considered including information that would not “require with” standard rules of evidence, and it is not permissible for a decision-maker to dismiss or discount assertions on the basis that they flow from a mixture of first-hand and hearsay evidence;[50]

(c)   the spirit of the inquiry was such that the decision-maker must not be too quick to criticise inconsistencies in the claimant’s account as indicating untruthfulness or generalised lack of credibility;[51]

(d)   while the process involves considering whether the claimant’s account is plausible, it can be potentially misleading for the decision-maker to apply his own concepts of what is inherently probable or improbable;[52] and

(e)   the reasons for decision must clearly state in respect of each factual element what evidence was accepted/rejected, whether there was some evidence the decision-maker could not make up his/her mind whether to accept or reject, and what evidence was considered to be irrelevant.[53]

126.  Further, Mr Barnes submitted that (a) the decision-maker must not exclude matters from his purview unless he can say, based on all the materials, they are in “no real doubt that they did not in fact occur”,[54] (b) the courts will examine closely the process by which the facts have been ascertained and the inferences drawn from them,[55] (c) mistakes of fact are an aspect of an irrational decision-making, but are now recognised as a standalone basis for seeking judicial review.[56]

127.  In my view, the starting point is as explained in paragraph 24 in HK v Secretary of State for the Home Department (see footnote 48 above).[57] I also reiterate that the Court of First Instance sitting in a judicial review plays a supervisory role and does not adjudicate substantively on the merits of the DOI and Adjudicator Decisions. Further, judicial review is not a further/alternative appeal procedure (see paragraph 98 above). I shall approach Ground 3 on the principles set out in paragraphs 98-99 above.

128.  In relation to the Shooting Incident,

(a)   The Adjudicator accepted the x-ray and medical reports showed MI suffered gunshot wounds in the past (which MI claimed was consistent with his overall story), but did not accept his injuries occurred in the manner alleged and/or he was treated for such a lengthy period in hospital. MI presumed the Adjudicator accepted he was hospitalised, but he alleged the Adjudicator did not make positive findings as to how else he suffered these injuries, whether the Shooting Incident did occur or whether it was MI’s invention. It was said that the Adjudicator’s vague/ unsatisfactory findings were irrational. MI made 2 further points: (i) the transcript of the oral hearing before the Adjudicator (“Transcript”) for 21 October 2014 at page 10 lines 1-10 showed the Adjudicator accepted MI sustained bullet wounds from the Shooting Incident, so it was not open to him to change his mind after the hearing, and (ii) the Adjudicator’s rejection of MI’s evidence about the Shooting Incident ostensibly because the duration of such incident was 4-5 hours was not a valid reason, and instead the Adjudicator should have accepted that as MI was in fear of his life and sustained life-threatening injuries, to MI the attack might have seemed to have taken a long time when in reality it was less so, especially as MI gave evidence that he lost consciousness and relied on others to tell him how long the attack lasted.
However, I note MI was legally represented before the Adjudicator and he had the chance to give oral evidence in relation to his case. His evidence was tested under cross-examination, and the Adjudicator put questions to him for clarification. In the circumstances, the Adjudicator had the opportunity to hear and consider MI’s case including his oral evidence.

In my view, the Adjudicator fairly accepted MI was shot, but there was sufficient factual basis for the Adjudicator not to accept the injuries occurred in the manner alleged. MI’s case was that his father left for the police station in the morning of 17 October 2002 to deal with the matter of the brick wall before the Shooting Incident occurred, and MI gave evidence that his father went to the police station at 7:00am (see paragraph 43 above). But such assertion did not sit well with the 2002 FIR which stated the Shooting Incident happened at 7:30am and MI’s father attended the police station at 8:45am, which suggested MI’s father had not yet left home for the police station before the Shooting Incident. This inconsistency was compounded by the fact MI claimed the Shooting Incident lasted 4-5 hours (which in light of the information in 2002 FIR suggested MI’s father left for the police station during the Shooting Incident). In my view, there was evidential basis for the Adjudicator to find this was quite implausible, and to conclude that whilst MI was injured by gunshot the incident did not happen in the manner alleged. This was further compounded by the fact that although MI claimed he was hospitalised and unconscious for 2-3 days as a result of the Shooting Incident, the 2002 FIR recorded he, his father and his uncle went in person to the police station to make such report on 17 October 2002. I agree with Mr Yu there was ample basis for the Adjudicator to disbelieve MI’s claim, and to find his evidence regarding the Shooting Incident was not credible. Having come to such conclusion, there was no need for the Adjudicator to speculate how MI actually suffered the gunshot injuries.

(b)   The Adjudicator did not accept MI was discharged from the District Hospital in Sargodha whilst still seriously injured, and he dismissed MI’s assertion that the treating doctors were improperly influenced by the PML(Q) group as being based on speculation. MI argued such finding did not sit with the Adjudicator’s acceptance that he continued to receive treatment at Mukhtar’s Family Hospital in Lahore (albeit not for the 4-5 months as he claimed). It was said that if MI still needed treatment when he was discharged from the District Hospital in Sargodha, his suspicion about PML(Q)’s influence was not mere speculation but a possible or even probable explanation.
I refer to paragraphs 45-46 above.  The Adjudicator made no specific finding MI was fully recovered when he was discharged from the District Hospital in Sargodha. Rather, the Adjudicator was not persuaded MI “was actually discharged from hospital while still seriously injured”. This was not inconsistent with MI having to receive further treatment at the Family Hospital in Lahore, especially when the Adjudicator concluded he did not remain as in-patient there for 4-5 months as claimed. As Mr Yu submitted, it was important to properly/ fairly appreciate the distinction between the Adjudicator’s restatement of MI’s claim/evidence in the Adjudicator Decision and the Adjudicator’s views/findings in his decision.  

(c)   MI claimed the Adjudicator’s criticism over his failure to provide documentary proof of his stay at the Family Hospital in Lahore placed too high a burden on him as not every (or sometimes any) matter in asylum cases could be verified by documents that might be difficult or impossible to obtain. MI also complained that even though he was criticised for seeking such documents “only recently”, the Adjudicator failed to record the DOI did not ask him for such evidence or raise doubts about the claimed length of hospital stay, and in any event he had explained at the appeal that he was not able to obtain the records as the hospital did not keep such records for more than 10 years.
I agree with Mr Yu that the Adjudicator Decision did not criticise MI for failure to provide documentary proof of his stay at the Family Hospital. The Adjudicator simply stated the reality that no medical report from the Family Hospital was available, and he even took note of MI’s explanation that his father was told the hospital did not keep records for more than 10 years and it appeared the hospital was scared there would be a case against them (see paragraph 46 above).  The Adjudicator restated such evidence not as a criticism but to demonstrate that the request for medical records was made recently (ie more than 10 years later), which lent weight to his conclusion in light of the overall evidence that MI’s assertion (ie the hospital was scared) was speculative.

(d)   The Adjudicator rejected the 2002 FIR for being inconsistent with MI’s evidence even though the Adjudicator had already rejected some (if not all) of MI’s evidence inconsistent with it, which was irrational as a decision-maker could not rely on inconsistencies between a contemporaneous document and oral evidence to reject the latter, and then reject the former as inconsistent with the oral evidence. MI also argued that to the extent the Adjudicator concluded after the hearing the FIRs were of dubious authenticity and used this to support his adverse finding on credibility, his approach was procedurally unfair in that (i) during the Interviews from November 2013 to July 2014 the DOI did not say he did not accept the genuineness of such FIRs, (ii) the DOI only indicated he might not accept the genuineness of the FIRs at the appeal and even reserved his position to oral submissions to follow at the end of the appeal,[58] (iii) the burden was on the DOI to establish to a high standard that apparently authentic documents were nonetheless forged,[59] (iv) it was never put to MI the 2002 FIR “was a forged document – simply that the contents were not true” (see the Transcript for 31 October 2014 at page 64 line 5), but the DOI’s closing submissions suggested the authenticity of the document was in question (see the Transcript for 14 November 2014 at page 26).
I am unable to accept the Adjudicator’s approach was irrational. The Adjudicator plainly gave careful consideration to the overall evidence and noted there were various inconsistencies between MI’s evidence and the 2002 FIR such that neither MI’s evidence nor such FIR could be relied upon. Such inconsistencies are set out in paragraphs 13-14, 17, 43 and 47-49 above, and the Adjudicator gave opportunity for MI to address on matters of concern (see in particular paragraph 48 above). Paragraphs 80 and 83 of the Adjudicator Decision made clear that in light of the overall evidence the Adjudicator was unable to attach any weight to the 2002 FIR owing to the numerous inconsistencies. Like Mr Yu, I fail to see any irrationality when the Adjudicator rejected reliance on such documents based on findings on the totality of the evidence that there were numerous inconsistences with MI’s evidence, and it would be inappropriate to adopt a blinkered approach to assessment of the evidence as suggested.

(e)   MI claimed the Adjudicator made nitpicking comments in relation to the Affidavit. It was said that although the Adjudicator criticised the Affidavit for not being an official document, the MI 2^nd Aff explained that in fact it was a standard affidavit prepared for court proceedings:

“7. …… An affidavit is required to be witnessed by two witnesses – as in this case. It must also be affixed with a stamp of a Stamp Seller. These “Stamp Sellers” are men who are authorised by the District Court to do so, and who position themselves outside the Court building and conduct this business. This is similar to a lawyer, or bank manager, or justice of the peace, in Hong Kong being authorised to witness an affidavit or affirmation. There is nothing “unofficial” about the document which, to the best of my knowledge, has been properly prepared.”

The Adjudicator noted the case number quoted in the Affidavit was “110” rather than “190”, but MI argued the case number in the 2002 FIR looked like “110”, and the possibility of error (which was understandable) was not raised at the oral hearing before the Adjudicator (see the Transcript for 21 October 2014 at page 67). MI further claimed that the fact there was a time gap between the Shooting Incident and the making of the Affidavit was no justification for concluding MI was not telling the truth about how the 2002 FIR came into existence.
I do not agree. As set out in paragraphs 85-87 of the Adjudicator Decision, the Adjudicator gave opportunity to MI to explain the discrepancies in relation to the Affidavit. MI’s only explanation was that the villager deponents of the Affidavit (who might be illiterate) just copied from the copy 2002 FIR that was with him, which copying was done quite some years after the Shooting Incident. In my view, there was ample basis for the Adjudicator to conclude that evidence as to the creation of the Affidavit (especially when it is now suggested might have been error in copying the 2002 FIR) was unreliable. I fail to see any irrationality when the Adjudicator declined to place reliance on the Affidavit.

129.  In relation to the alleged false blasphemy charge in 2006,

(a)   MI claimed the Adjudicator rejected his account of the false blasphemy charge by finding that the 2006 FIR he produced was a false document (as the legislative provisions referred therein did not exist), but the DOI did not question such FIR until his submissions in the appeal to the Adjudicator. The MI 2^nd Aff asserted that “[to] the best of [MI’s] knowledge this is a genuine document and [MI does] not know whether there is a mistake in the original document or the section referred to is the correct section. [He confirms] that all answers given by [him] about what happened in 2006 when he was arrested under this false charge are true”. MI claimed that to the extent this was an error in the copy 2006 FIR, the 2006 FIR and his account of the relevant events could not be dismissed as a result.
I note the Adjudicator found no weight could be placed on the 2006 FIR for the reasons set out in paragraph 52-53 above. Although it was said the exercise for determining a non-refoulement claim was a “joint endeavour”,[60] which recognised that an applicant might be disadvantaged in presenting information / materials he might need to establish his claim or the decision-maker might need to process it,[61] there would be limits to what high standards of fairness would require of the decision-maker. The Court of Final Appeal in Prabakar was concerned with an unrepresented applicant. But like the applicant in TK v Jenkins & anor,[62] MI here was represented and assisted by the DLS. In TK v Jenkins & anor, Cheung CJHC in commenting on the duty to make inquiries stated that where the applicant was all along represented, within reasonable bounds, the applicant’s side was expected to conduct its own investigation and obtain information / materials that it required to support / prove its case, so depending on the facts of each case “[there] may be no duty [for the DOI] to keep probing or inquiring where the objective circumstances made it reasonably clear that the applicant and those representing him are aware of what he has to show and has already produced or mentioned all that he wants to produce or mention”.[63] High standards of fairness did not entitle the applicant, having stated his claim, to simply sit back and require the decision-maker to disprove it.[64] “He takes the initiative in preparing his claim and it is he who knows the basis, both factual and legal, on which he puts his claim. Furthermore, he enjoys the benefit of legal representation to assist him in establishing it. He clearly must play a pro-active role in presenting and substantiating it and assisting the [decision-maker] to process it” (my emphasis).[65] If the applicant and his legal representatives had not seen fit to obtain and supply such information to the decision-maker, high standards of fairness would not require the decision-maker to do so for the applicant “at least in the absence of any request for assistance and an explanation of the difficulties (if any) encountered or anticipated”.[66]
McWalters J (as he then was) in AM v Director of Immigration & anor[67] reiterated the separate roles played by the applicant and the decision-maker in the “joint endeavour”. The claim was that of the applicant who bore the ultimate responsibility for it throughout the processing of it. The burden of proof always remained on the applicant being the person claiming protection from refoulement.[68] On the other hand, the decision-maker had a reactive role, which was “not to assist the applicant to establish his claim – that is the role of the claimant’s lawyer. Rather, the [decision-maker’s] role is to ensure that the claim is fairly processed and this may, at times, involve him in using his resources to assist the claimant in addressing matters relevant to the processing of the claim”.[69]
The reference to erroneous legal provisions in the 2006 FIR was apparent on its face, and MI and his legal representatives must have known it was a matter crucial to the vitality of his allegation of false blasphemy charge against him. Further, MI gave evidence under cross-examination that his father obtained a copy of the 2006 FIR when he was brought to court and was granted bail. MI did not explain how the alleged false blasphemy charge (alleged to be a conspiracy between Iqbal and the police) could have been brought to court and how a sentence of imprisonment could have been imposed on a charge premised upon non-existent legal provisions. There was ample basis for the Adjudicator not to attach weight to the 2006 FIR.

(b)   As regards alleged maltreatment MI received at Miani PS (which MI alleged was “the same Police Station where several of the perpetrators of the [Shooting Incident] were stationed”), MI claimed he was beaten up and forced to confess to a false charge of blasphemy. MI stated the Adjudicator’s view that “even assuming that [MI] was arrested and ill-treated during his detention, the level of the claimed ill-treatment, was not of the degree of severity required to support an application for non-refoulement protection” was incorrect as a matter of fact because he was severely beaten and incorrect as a matter of law because past maltreatment was very relevant to the possibility/ likelihood of future ill-treatment and persecution, and it was unnecessary for ill-treatment to attain some minimum level of severity in order for it to be considered as a relevant factor.
In my view, MI’s criticism was against an assumed position adopted by the Adjudicator. But the Adjudicator’s primary finding was that MI’s case could not be supported for lack of credibility. Given the overall unreliability of the 2006 FIR and the inconsistencies set out in paragraphs 96-98 of the Adjudicator Decision (see paragraph 55 above), it was open to the Adjudicator to come to the findings he made.

130.  In relation to later events, MI claimed the Adjudicator dismissed pre- and post-departure events as insufficient to support his claim for fear of persecution and other ill-treatment upon return, but such finding could not be separated from the errors by the Adjudicator in his assessment of the earlier events in 2002 and 2006 which were the genesis of MI’s troubles. But in light of my above conclusions in relation to the events in 2002 and 2006, there was no merit to MI’s complaints in relation to the later events.

131.  In my view, the Adjudicator thoroughly highlighted the inconsistencies of the evidence in his decision, and I see no error of law in his findings of fact. Having carefully considered the Adjudicator Decision, I find that the Adjudicator’s findings on facts and credibility were well within the realm of what he was entitled, after conducting an oral hearing, to reject/disbelieve, and MI’s challenges to the substantive merits of the findings would not be allowed in a judicial review. As regards MI’s complaints against the Adjudicator Decision on the basis that certain matters had not been raised with him prior to the oral hearing before the Adjudicator, it must be remembered that MI was legally represented at the first-tier screening and at the second-tier oral hearing.[70] Mr Chan had time to prepare MI’s case and to lodge the Chan Submissions before such oral hearing.  As Mr Yu pointed out, the hearing of the appeal/petition was not an isolated process and the Adjudicator was entitled to take into account all relevant materials/evidence before him in assessing MI’s claim,[71] and to reject MI’s credibility. In the circumstances, I find Ground 3 was not arguable.  The Adjudicator had exercised a high standard of fairness, and I am unable to find any error of law or procedure.

132.  As for Ground 4, it was explained in Re MI that the extended concept of state acquiescence “makes the State liable for the actions of non-State Actors and also because it makes the State liable not just for what it did and not just for what its local public officials may have deliberately chosen not to do, but, in certain circumstances …… also for what it, the State, through its public officials, should have done but failed to do, in respect of the actions of these non-State Actors”.[72] It is for MI to make out his case, but it was not apparent from MI’s claim and/or the draft Amended Form 86 that there were any “non-State Actors” for whom the State should be held liable.  Actually, the Adjudicator did deal with the issue of state protection in the Adjudicator Decision, and he found MI’s non-refoulement claim failed on his lack of credibility, so his claim of lack of state protection based solely on speculation/theory was not established even to the low standard required.  In my view, the consideration of the extended concept of state acquiescence was not necessary, hence Ground 4 was not arguable.

133.  I therefore find the proposed Grounds 1-4 were not reasonably arguable.

(d)  Question of general public importance

134.  Mr Barnes accepted there was no question of general public interest or importance in the present case.

VI.  CONCLUSION

135.  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. I therefore dismiss (a) the Summons, and (b) MI’s application to extend time for him to apply for judicial review. That being the case, MI’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 MI’s applications, and MI’s own costs be taxed in accordance with Legal Aid Regulations.