MR BIMAL GYAWALI v. PERMANENT SECRETARY FOR SECURITY

HCAL 914/2023

[2023] HKCFI 1982

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 914 OF 2023

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J U D G M E N T

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A.  Introduction

1.  By his Form 86 filed on 12 June 2023, the Applicant sought leave to apply for judicial review so as to challenge the decision (“Decision”) made by the Secretary for Security (“Secretary”) on 13 March 2023 to refuse his request for rescission or withdrawal of a Deportation Order made against him on 14 May 2005.

2.  The relief sought in the Form 86 is an order of mandamus to compel the Secretary for Security to provide reasons for refusing the Applicant’s request for the rescission or withdrawal of the Deportation Order.  As is linked, the only ground on which that relief is sought relates to an alleged failure to give any reasons as to why his request was refused.  (However, I also note that the Form 86 did indicate that the Applicant would apply for legal aid and would seek approval to amend the Form 86 should legal aid subsequently be granted.)

3.  Though the Form 86 suggests that the relevant decision was made by the Secretary, it was in fact made by the Permanent Secretary for Security (“PS for S”), and I have accordingly headed this Judgment identifying the PS for S as the putative respondent.

4.  On 14 June 2023, I directed the matter to come on for hearing on 3 August 2023, and I gave directions for the PS for S to file and serve an initial response, and for the Applicant to file a reply, in accordance with a timetable subsequently slightly extended by me on 11 July 2023.  The extended timetable permitted the PS for S to file his initial response by 14 July 2023, and for the Applicant to file any reply by 28 July 2023.  The initial response was provided on 14 July 2023, but the Applicant had not filed any reply.

5.  Shortly before the hearing fixed for 3 August 2023, it came to the attention of both the Court and the Department of Justice (“DOJ”) that there was a Memorandum of Notification of an Application for Legal Aid dated 13 July 2023.  That triggered an automatic 42-day stay, and it seemed to me to be appropriate to agree with the DOJ’s suggestion that the hearing date be vacated, and re-fixed after the expiry of the period of stay on 30 August 2023.  Accordingly, I re-fixed the hearing for today, 21 September 2023.

6.  As I understand it, the Applicant’s application for legal aid is yet to be determined.  In those circumstances, the Applicant suggested in his written submission that if I was not minded to grant leave, I might adjourn the hearing for a further two months so that the legal aid application could be determined and (he hoped) so that he could have Counsel’s assistance.  However, on the materials, I saw no reason why the hearing should not go ahead on the re-fixed date.

7.  At the hearing, the Applicant appeared in person, with the benefit of a Nepali/English interpreter.  The Applicant had also provided his written submissions (written in English) dated 19 September 2023 in advance of the hearing.  He made short oral submissions.

8.  The PS for S was represented by Mr Felix Lee, Acting Senior Government Counsel, who also signed the initial response. Mr Lee relied at the hearing on that initial response, without further oral elucidation.

9.  At the end of the hearing, I reserved my decision.  This is my Judgment.

B.  Background Facts

10.  The Applicant is a 54-year-old Nepalese national.

11.  On 25 October 1995, the Applicant solemnised a marriage in Nepal with a Hong Kong permanent resident (“HKPR”) of Nepalese origin (“1^st Wife”).

12.  On 27 July 1996, the Applicant entered Hong Kong as a visitor, but subsequently applied for an extension of stay in Hong Kong as a dependant of his 1^st Wife.  On 27 August 1996, the Applicant was granted permission to remain on dependant status, which permission was subsequently extended until 24 June 2004.  However, prior to the expiry of that extension, the Applicant and the 1^st Wife were divorced on 15 January 2002.

13.  On 5 August 2003, the Applicant was convicted of the offence of “assault with intent to rob”, on 19 August 2003 and was sentenced to 3 years’ imprisonment.

14.  The Applicant’s appeal against conviction and sentence was refused by the Court of Appeal on 5 May 2005.

15.  On the basis of the criminal conviction, and pursuant to section 20(1)(a) of the Immigration Ordinance Cap 115 (“Ordinance”), the PS for S made a Deportation Order for life against the Applicant on 14 May 2005.

16.  After release from prison on 3 June 2005, the Applicant was held in Immigration Department custody, until he was released on recognizance on 5 August 2005.

17.  On 8 June 2005, the Applicant’s cousin made a request on his behalf to the Chief Secretary for Administration, the Secretary and the Director of Immigration (“Director”) to “suspend and cancel” the Deportation Order.  The request was handled as an objection under section 53 of the Ordinance (namely a Statutory Objection against the Deportation Order) to be dealt with by the Chief Secretary for Administration, as well as a request for suspension or rescission of the Deportation Order to be dealt with by the PS for S.

18.  On 9 June 2005, the Applicant lodged a torture claim (“CAT Claim”) to the Immigration Department.  The process of considering the Statutory Objection was withheld pending the determination of the CAT Claim.

19.  On 17 January 2006 – so after the Deportation Order had been issued, and whilst the Applicant was released on recognizance – the Applicant solemnised a marriage in Hong Kong with another Hong Kong resident of Nepalese origin who has the right to land in Hong Kong (“2^nd Wife”).  The Applicant’s marriage to the 2^nd Wife was subsequently dissolved in Hong Kong on 28 November 2014.

20.  On 5 June 2012, the Applicant’s CAT Claim was refused by the Director.  The Applicant’s subsequent petition against the Director’s decision was refused by the Petition Team of the Security Bureau on 20 July 2012.

21.  In 2013, the Applicant lodged a non-refoulement claim (“NRC”) which was dealt with under the Unified Screening Mechanism.  The NRC was refused by the Director on 26 January 2017.  The Applicant’s appeal/petition against the Director’s decision was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office on 2 September 2019.

22.  In the meantime, by letter dated 22 September 2016, the Chief Secretary for Administration’s Office informed the Applicant that the Chief Executive-in-Council had considered the Statutory Objection and ordered that the Deportation Order should be confirmed.

23.  Further, on 10 July 2015 – so again whilst the Deportation Order remained extant, and whilst released on recognizance – the Applicant married his current wife (“3^rd Wife”) in Hong Kong.  The 3^rd Wife is a HKPR of Indonesian origin, who was herself previously married.  The Applicant and 3^rd Wife have a daughter born in Hong Kong on 20 August 2015, and the Applicant has a step-son, who is a HKPR born on 11 July 2003 during the 3^rd Wife’s previous marriage.

24.  On 6 September 2016, the Applicant was convicted of “driving a motor vehicle with alcohol concentration above the prescribed limit” and “using a motor vehicle on a road against third party risks”.  Altogether the Applicant was sentenced to 2 months’ imprisonment suspended for two years, disqualification of his driving licence for two years, and required to attend and complete a driving improvement course.

25.  It is relevant to note, in the context of certain points made by the Applicant, that the Applicant was apparently arrested on 30 March 2003 for the offence of “assault with intent to rob”, for which he was subsequently convicted on 5 August 2003 and sentenced on 19 August 2003.  By that time, the Applicant had been ordinarily and lawfully resident in Hong Kong for 6 years 11 months and 22 days, namely about 8 days short of the 7-year period for eligibility as a HKPR.

26.  The Applicant has made two applications for verification of eligibility for Permanent Identity Card (“VEPIC”).  Those applications were refused on 20 August 2005 and 8 November 2012 respectively.  The Applicant’s request for reconsideration of the two refusal decisions were also refused on 23 November 2005 and 28 February 2013 respectively.

C.  The Applicant’s Requests

27.  As well as the cousin’s letter dated 8 June 2005, there have been numerous representations made between 21 June 2005 and April 2021 by the Applicant, his relatives and legal representatives in support of his request for suspension or rescission of the Deportation Order.

28.  I do not think I need for present purposes to set out the detail of those various representations, and (having read the materials) I am content to adopt Mr Lee’s summary of the grounds for the requests as put forward over that period by the Applicant, his relatives and legal representatives, as including:

(1)  The Applicant intended to appeal against his conviction to the Court of Final Appeal, and would seek legal aid for that purpose.

(2)  The Applicant was not well educated and could not understand the procedures to apply for VEPIC.

(3)  The Applicant was entitled to claim right of abode and HKPR status as he had lived in Hong Kong continuously for over seven years prior to his convictions, and so questioned the validity of the Deportation Order by lodging the Statutory Objection.

(4)  The Applicant would face political persecution if he were to be deported to Nepal.

(5)  The Applicant’s cousin was a businessman, capable of supporting the Applicant.

(6)  A friend of the Applicant, who was in a similar situation as the Applicant, had his deportation order suspended and became a HKPR.

(7)  The Applicant and his family members wished that the Applicant could stay in Hong Kong, with reliance placed on the Hong Kong Bill of Rights, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.

(8)  The Applicant had substantial connection with Hong Kong.

(9)  The 3^rd Wife, the Applicant’s daughter and the Applicant’s stepson were living together happily.  They were not living on Social Security, and they were not a burden to the Hong Kong society.  The Applicant was the main support of the family and he could take care of the children.

(10)  The Applicant had been a law-abiding citizen after the Applicant’s release from detention in 2005.

(11)  The Applicant was remorseful for his wrongdoings and had turned a new leaf of his life.

29.  I think it can also be noted that amongst the representations made by the Applicant, he expressly recognised that there was the original right to deport him, and he did not wish to have any legal battle with or fight the Hong Kong immigration authorities.  Nevertheless, some legal arguments were also subsequently raised by his legal representatives, as indicated above.

D.  The Decision

30.  Mr Lee says that the PS for S’s consideration of the Applicant’s request was deferred until after determination of the Statutory Objection and the Applicant’s NRC.  As it turned out, this was for an extremely lengthy period (during which the Applicant in effect continued with his ordinary life in Hong Kong, as I have outlined above).

31.  On 10 March 2023, the PS for S refused to suspend or rescind the Deportation Order, as he was not able to find sufficient justification for so doing, i.e. the Decision.  Notification of that Decision was provided to the Applicant, via his solicitors, by letter dated 13 March 2023.  The letter stated:

I refer to your letters dated 6 October 2018, 11 September 2019, 7 May 2020, 7 December 2020, 12 April 2021 and the other letters from your client, Mr Bimal GYAWALI, his family members and his former legal [re]presentatives providing grounds in support of the said request.

The power to suspend/rescind the deportation order conferred upon the Chief Executive by section 54/55 of the Immigration Ordinance (Cap. 115), has been delegated to the Permanent Secretary for Security (“the Permanent Secretary”) pursuant to section 63 of the Interpretation and General Clauses Ordinance (Cap. 1).

Your request has been carefully considered by the Permanent Secretary.  Having taken into account all the circumstances of the case, the Permanent Secretary is not able to find sufficient justification for suspending/rescinding the deportation order against Mr Bimal GYAWALI.  In the circumstances, the decision to deport Mr Bimal GYAWALI from Hong Kong for life still stands.

32.  There is an internal file minute M.1 which identifies the way in which the request for suspension/precision of the Deportation Order was approached.  Minute M.1 identifies the relevant statutory provision and a relatively full background of the case including as to the making of the Deportation Order, the Statutory Objection, the Applicant’s subsequent convictions, his CAT/NRC claim status, his family background, and his VEPIC applications.  Minute M.1 then proceeds to consider in some detail the grounds put forward by the Applicant and those assisting him in his request, and it references the various documents submitted in support of the request. Minute M.1 then sets out the comments received from the Commissioner of Police and the Director, before a section headed ‘Decision sought’ which traverses the reasoning approach, broadly as follows:

(1)  The Deportation Order made against the Applicant was the consequence of his criminal convictions, associated with crime of a serious and violent nature, which demonstrate that the Applicant does not respect the laws and order of Hong Kong, such that his presence in Hong Kong poses a threat to the security of Hong Kong.

(2)  The conviction record stands, absent any successful appeal against conviction.

(3)  Deportation is not a sentence or punishment to fit the crime.  It is triggered because the territory has decided that it no longer welcomes the particular person, wants him to leave, and does not want him to come back again.  The Applicant cannot have any expectation that the prohibition of his stay in Hong Kong would be lifted easily.

(4)  Though the Applicant has asserted that he is entitled to claim HKPR status, his VEPIC applications and subsequent request for reconsideration have been rejected, and his right of abode has not been established.

(5)  The Applicant cannot rely on the claimed family rights by his HKPR family members to justify a request for suspension/rescission of the Deportation Order.

(6)  Though the deportation of the Applicant for life may deprive him of his proximity to his family members in Hong Kong, the Applicant’s family members are nevertheless free to visit or reunite with him elsewhere outside Hong Kong, without undue difficulty.

(7)  Being an able-bodied adult of Nepalese origin, the Applicant should not have undue hardship to re-establish himself in Nepal.

(8)  Nor is there any indication that the Applicant would be deprived of state protection in the case that his life is put into risk after deportation to Nepal.

(9)  In conclusion, having considered all circumstances of the case, it is considered that the grounds put forth in the Applicant’s request do not sufficiently justify suspension/rescission of the Deportation Order.

33.  The recommendation for rejecting the request, as set out in Minute M.1, was accepted up the chain of command, including by the PS for S.

34.  Following receipt of the Decision, the Applicant’s former solicitors made a data access request on 23 March 2023 and, in response to that request, documents were provided to the Applicant’s former solicitors on 17 May 2023.  Amongst the documents provided was a copy of Minute M.1.

35.  These proceedings were commenced by the Applicant’s Form 86 filed on 12 June 2023 (but dated 9 June 2023). Though issued by the Applicant acting in person, it looks like he might have had some assistance in preparing it.

E.  The Intended Challenge

36.  As indicated above, the only intended ground of review put forward by the Applicant in his Form 86 relates to his suggestion that no reasons were given for the Decision.  But, as might be expected, the Applicant’s real concern is that his request for rescission or suspension of the Deportation Order was not acceded to.  Nevertheless, I shall first address the challenge as framed.

37.  In the Form 86, the Applicant submits that it is wrong not to provide reasons to refuse his application, because (where I have changed his references to the Secretary to references to the PS for S):

(1)  The PS for S has a duty to give reasons for his refusal because he is exercising administrative authority under an ordinance.

(2)  The Applicant has a right to know what grounds or matters the PS for S has taken into account, and what he has not.  This is fairness.

(3)  Only then will the Applicant know whether there are merits of appeal or grounds to make further representations or even judicial review.

(4)  The Applicant will make an application for legal aid, and may amend his grounds should legal aid be granted.

38.  The Applicant also asked for an oral hearing, if leave were not to be granted on paper.

39.  Shortly before the hearing, the Applicant put in typed written submissions, by which he further submitted (in my summary of his points) as follows:

(1)  The Applicant made his earliest application for rescission or withdrawal or suspending of the Deportation Order on 8 June 2005, and subsequently through two solicitors.  But, throughout the years, despite writing 16 letters, he has been kept in the dark throughout the process.

(2)  On 13 March 2023, after some 18 years of waiting, he received the Decision, which did not mention any reason why his application was refused, nor mention anything about how the Applicant could meet the “sufficient justification” for suspending or rescinding the Deportation Order.

(3)  Although the PS for S does not have a legal duty to give reasons, he cannot just write a line saying that the application is not successful – not least after the lengthy period of time and number of letters and submissions provided by or for the Applicant.

(4)  There is also a clear trend towards insistence on greater openness of decision-making, where the duty to give reasons has increasingly been imposed in various contexts.

(5)  The Applicant was regrettably convicted of a crime when he had dependant status following his first marriage, when he had stayed six years 11 months and 22 days in Hong Kong and it was known that the Applicant could become eligible to be a HKPR only eight days later.

(6)  If the Applicant cannot obtain suspension and rescission of the Deportation Order, the Applicant could not have been able to obtain a dependant status from his current wife.  That is why it is crucial to know the reason why the application was refused, in particular as the Applicant has stayed in Hong Kong for 27 years continuously.

(7)  Letting the Applicant know the reason is easy, and the cost would be minimal.

(8)  If reasons are provided, the Applicant will understand what action to take next, such as whether to judicially review the decision of the PS for S.

(9)  If the Applicant considers the reasoning unreasonable, he will seek to amend the Form 86 to include in the application for judicial review a challenge to the Decision of the PS for S refusing his application

40.  At the hearing itself, I think it fair to say, the Applicant really focused his submissions on the overall injustice which he felt he had suffered.  He did not really address the question of reasons for the decision, and instead made the following points:

(1)  The Applicant’s mother has recently passed away, and he is grieving.  He had hoped to be able to see his mother in Nepal before she passed, but was unable to go for fear of being unable to return to his wife and children in Hong Kong.

(2)  He has been staying in Hong Kong for 27 years (which is half his age of 54), and has led the life of a common man.

(3)  At his age, and at this difficult time, he really has nowhere else to go but to stay in Hong Kong.

(4)  Since release after his original conviction in 2005, he has not done any criminal acts against Hong Kong or the government.

(5)  His true character is evident from the two letters handed up to the Court at the hearing (see below).

(6)  He wishes to seek justice for himself, which would allow him to stay with his wife and daughter and step-son who are all in Hong Kong.

41.  The two letters handed up by the Applicant are, in essence, character references.  One was from the Nepal Chamber of Commerce Hong Kong, dated 19 September 2023.  The other was from the Hong Kong Police Federation, dated 21 September 2023.  The former describes the Applicant as a well-known person in the small Nepalese community in Hong Kong who is “not only very charming guy but also helpful to the needy people in Hong Kong”.  The latter – signed by the Chairperson – is deserving of longer quotation, and it certifies as follows:

Since 2017, Mr. Gyawali has consistently shown unwavering loyalty, dedication, and cooperation in our endeavors.

HKNF is the umbrella organisation of more than 30 Nepalese organisations based in Hong Kong since 1998, dedicated to social and community services for ethnic minorities, including the local population.  HKNF greatly values Mr. Gyawali’s contributions as he actively participates in the HKNF’s activities, where he has made invaluable voluntary contributions.

Mr. Gyawali’s tireless efforts have not only successfully integrated Nepalese people into Hong Kong’s society but have also significantly improved our community’s overall well-being.  He is a person of exceptional moral character – honest, disciplined and hardworking, as witnessed during our time working together.  His dedication to the betterment of the Nepalese community and cultural harmony is commendable.

On behalf of the Hong Kong Nepalese Federation, we extend our best wishes to Mr. Gyawali for his future endeavours and continue his selfless actions towards our community.

42.  Of course, those two letters are not directly relevant to the question of whether adequate reasons were given for the Decision the subject matter of intended challenge in these proceedings, but I think they help to give the measure of the man who is the Applicant.

43.  As to the submissions made by the Applicant in general, I can address those various matters in my analysis in the next section of this Judgment as appropriate.

F.  Any Merit in Intended Challenge?

44.  The relevant principles in relation to the giving of reasons for administrative decisions are well known and have been considered by me in previous cases, where I have offered the following summary of the principles as follows:

(1)  There is no general duty to give reasons for administrative decisions, but the nature or circumstances of an adjudication might indicate a necessity for giving reasons.

(2)  If and when a duty to give reasons arises, what is regarded as adequate depends on the particular facts of each case.

(3)  The Court should consider a reasons challenge with practical reality in order to prevent an application for judicial review from being turned into a merits review, and to avoid treating day-to-day administrative decision-making processes as if they were judgment-writing.

(4)  The reasons given should show that the decision-maker has addressed the substantial issues and show why the decision-maker has come to its decision.

(5)  The reasons should show that the issues that arise for serious consideration have been considered.

(6)  But the reasons in any given case may not require great elaboration, and they may be brief.

(7)  Sufficient reasons may be required so as to enable the affected individual to exercise effectively any right to appeal or review.

(8)  The giving of reasons in any individual case must be viewed in the context of that case.

(9)  Hence, it may be that the Court can have regard to the prior interaction or exchange between the parties to determine whether the reasons given are sufficient to meet the requirements of the principles.

(10)  Where the decision-maker purports to have given reasons, the reasons should be subject to the same level of scrutiny as if there was an express duty to give reasons.

(11)  A reasons challenge will only succeed if the party aggrieved can satisfy the Court that he has genuinely been substantially prejudiced by the failure of the decision-maker to provide an adequately reasoned decision.

45.  I also agree with Mr Lee that it is legally incorrect to suggest that the PS for S is under a duty to give reasons for the Decision.  Nevertheless, even if a duty has arisen, it seems to me that the PS for S has given adequate reasons, even in the letter dated 13 March 2023 notifying the Decision.  The Applicant’s dealings with the Director and the PS for S have a long history, and there have been numerous representations made over many years by or on behalf of the Applicant relating to his request for suspension or rescission of the Deportation Order.  The Decision must be read in that context.  It specifically references the various letters sent by the Applicant or on his behalf, in which he has asserted the basis upon which he says his request could or should be granted.  It also specifically identifies that, having taken all of the circumstances of the case into account, the PS for S has not found sufficient justification for suspending or rescinding the Deportation Order.

46.  In any event, the matter is put beyond doubt by the subsequent provision to the Applicant of Minute M.1 (amongst other documents provided in response to the data access request).  The detailed basis of the consideration and the reasoning leading to the rejection of the request are set out in Minute M.1.  It is untenable for the Applicant to continue to suggest that he does not know what grounds or matters have been taken into account, and what have not.

47.  Hence, the only intended ground put forward is not reasonably arguable with any realistic prospect of success.

48.  In any event, there are also further well-established principles which might be applicable in the context of the Decision. In that context, the PS for S has no duty to have regard to humanitarian and compassionate considerations, even where family ties might be affected.  But if the PS for S did take them into account, the weight to be attached to a particular humanitarian or compassionate consideration in any particular case at any particular point in time is a matter for the PS for S, and not for the Court – subject, of course, to a potential irrationality or Wednesbury unreasonableness challenge.

49.  In this case, the whole basis of the Applicant’s request for suspension or rescission of the Deportation Order was to assert humanitarian or compassionate considerations.  Plainly, as is evidenced by Minute M.1 and the letter dated 13 March 2023 notifying the Decision, those matters were taken into account by the PS for S.  The weight to be given to the considerations was a matter for the PS for S.  The Decision made was open to the PS for S on the materials.  Even though the point has not been directly raised – and though the Applicant has flagged that he might wish to challenge the Decision itself once he has its reasoning – I would note that there is no reasonably arguable irrationality or Wednesbury unreasonableness in the Decision.

50.  For completeness, I would record that even had the Applicant not understood why the Decision was made upon receipt of the Decision letter itself given on 10 March 2023, he had the detailed reasoning from reading Minute M.1 made available to him on 17 May 2023 (in response to his request).  That was more than three weeks before the date of the Form 86 issued in these proceedings.  Other than perhaps the fact that the Applicant himself is not highly educated, no explanation has been offered why the proceedings were launched to continue to seek reasons for the Decision which had already been provided in full.

51.  I note that the Form 86 is dated 9 June 2023, namely on the last day of the long-stop three-month time within which an application for leave to apply to challenge the Decision should have been made. The apparent recognition of the time limit, and the form of the Form 86 itself suggest that the Applicant might have had some legal assistance (even if his former solicitors were no longer acting for him on the record).  Further, if it had been intended to challenge the Decision in light of its reasoning, there is no reason why that challenge could not been brought within time, all with the benefit of seeking a short extension.

52.  I see no reason why I should at this juncture extend time in relation to a possible challenge to the Decision itself – which is clerly the Applicant’s real concern – whether by way of amendment to the existing Form 86 (as suggested) or by any fresh application.  But, in any event, from the above it can be seen that I have considered whether there appear to be any reasonably arguable public law grounds which might be put forward in challenge of the Decision.  In my view, there are none.

53.  I would, nevertheless draw attention to the matters I raise in the Postscript below.

G.  Result

54.  In consequence of the Applicant failing to identify any intended grounds of review which are reasonably arguable with any realistic prospect of success, the application for leave to apply for judicial review stands to be dismissed.  I so order.

55.  Though Mr Lee has made an application for costs, in my overall exercise of the broad discretion as to costs I make no order as to costs.

H.  Postscript

56.  Though driven to the conclusion that the Applicant’s application stands to be dismissed (and indeed that it was misdirected), I confess that the overall circumstances of this case, and the PS for S’s Decision on the basis of those circumstances, have caused me significant unease.

57.  On the settled legal principles which I have identified, the PS for S had a wide discretion – subject only to the scrutiny of the Court through the lens of public law irrationality – in deciding whether to rescind or suspend the Deportation Order made against the Applicant, now more than 18 years ago.  Irrationality is a high threshold, particularly so where the Applicant is applying to the PS for S on compassionate grounds. Though I have not been able to conclude that the Decision in this case was outside the range of rational decisions as might have been made, I do think the Decision was at the fringes – and very much at the harsher end – of that range.  I rather suspect that a number of people would have come to a different decision if the matter were in their hands, though that is not a good enough reason to quash the decision on the ground of irrationality.

58.  I do not think that the PS for S has met the Applicant for his own personal assessment of the Applicant – and I do not suggest that it was in any way incumbent on the PS for S to have done so (in this case or any similar case).  But I have seen the Applicant in Court, and have reached my own assessment.  I have also had the benefit of the letters recently written in support of the Applicant, which the Applicant handed up during the hearing (see above).

59.  These circumstances and my comments, offered for whatever they are worth, might lead to the PS for S concluding that this case justifies another look.  Of course, whether that is to happen and, if so, what conclusion might be reached is a matter for the PS for S.