ST v. BETTY KWAN AND ANOTHER

HCAL 60/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 60 OF 2012

---------------------------------

------------------------

J U D G M E N T

------------------------

A. INTRODUCTION

1.  The applicant is a Sri Lankan national.  In 2004, he made a torture claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading or Punishment Treatment (“the CAT”) whilst he was serving imprisonment for having entered Hong Kong with a passport with false identity.

2.  His CAT claim was refused by the Director of Immigration (“the Director”) (the interested party) on 7 November 2011 by way of a Notice of Determination (“the Determination”).  The applicant’s petition (“the Petition”) seeking a reconsideration of his claim was also later dismissed by the adjudicator (the 1^st respondent) on 5 January 2012 (“the Adjudicator’s Refusal Decision”).

3.  This is his application for judicial review seeking to quash[1]:

(1)  The adjudicator’s (a) decision not to afford the applicant an oral hearing and/or give notice of her intention not to so afford him an oral hearing (“the Adjudicator’s No Oral Hearing Decision”); (b) decision to refuse the Petition (ie, the Adjudicator’s Refusal Decision); and

(2)  The Secretary for Security (“the Secretary”)’s decision to (a) “direct” the adjudicators generally to determine CAT petitions without oral hearing as set out in the Brief Notes and Practice Directions issued by him; and (b) instruct petitioners and require them to petition using the Petition Form which acknowledges that their petitions may be determined without an oral hearing and without further notice to them (collectively “the Secretary’s Decisions”).

(3)  The adjudicator’s decision dated 27 March 2011 to agree to and adopt the provisions of the Brief Notes, Practice Directions and the Petition Form set out under the Secretary’s Decisions.  For convenience, I will refer this further decision as the “Adjudicator’s Adoption Decision”[2].

4.  As will be elaborated below, arising in this judicial review of the various decision, the applicant mounts:

(1)  A general and fundamental systemic challenge as to whether the “procedure” adopted by adjudicators to dispose some of the petitions summarily on papers without an oral hearing, and without further giving the petitioners notice that the relevant adjudicator intends to dispose of the petition without an oral hearing with reasons, is systemically unfair, irregular or unlawful.  I will refer this challenge generally as “the systemic challenge”.

(2)  A specific challenge of the Adjudicator’s Refusal Decision based on the individual merits and circumstances of the applicant.  I will refer this generally as “the specific challenge on individual circumstances”.

5.  As usual, the adjudicator as the 1^st respondent has indicated that she would take a neutral stance in this application and has not taken any part in it.  The real opponents of the application are the Secretary (as the 2^nd respondent) and the Director (as the interested party).

6.  Before dealing with the substantive arguments in support of the judicial review, I will first set out the relevant background relating to the applicant’s torture claim to put the matter in proper context.

B.  BACKGROUND

B1.  The applicant and his CAT claim

7.  The applicant is born in North Matale in central Sri Lanka.  He is married and his wife apparently lives in Kandy in Sri Lanka.

8.  He first came to Hong Kong on 10 January 2003 with a passport under his real name.  He was refused permission to land and repatriated to Sri Lanka the next day. 

9.  He came to Hong Kong again two months later, using a passport under a false name.  He was allowed to stay as a visitor until 11 March 2003.  He however overstayed.

10.  In July 2003, the applicant sought recognition of his refugee status from the UNHCR.

11.  The UNHCR refused the applicant’s refugee claim in February 2004.  He appealed against that refusal.

12.  On 13 July 2004, the UNHCR dismissed the applicant’s appeal.  The applicant then asked the UNHCR to re-open his claim.

13.  On the other hand, in March 2004, the applicant was arrested and charged with making a false identity to enter Hong Kong. 

14.  He was later convicted of the offence and sentenced to 6 months’ imprisonment.

15.  While serving his sentence, on 7 July 2004, the applicant raised his CAT claim, claiming that he would be subject to torture if he were refouled to Sri Lanka.  

16.  In support of the CAT claim, the applicant says he is fearful that, if he is to return to Sri Lanka, he would be harmed or killed by the Sri Lankan Police (“SLP”) and/or the Sri Lankan Army (“SLA”), and/or by the paramilitary groups associated with the SLA and/or the Sri Lanka Government (“SLG”), including the paramilitary units of the Eelam People’s Democratic Party (“EPDP”) and/or the Eelam People’s Revolutionary Liberation Front (“EPRLF”), as he is a Tamil and had been involved with anti-government activities.  His claim is generally supported by the following essential allegations[3]:

(1)  He was a Tamil.  His family members had been members of the Liberation Tigers of Tamil Eelam (“LTTE”) which was involved with anti-government activities.  However, the applicant himself was not a member of the LTTE.

(2)  At certain periods of time in the 80’s and 90’s:

(a)  He had helped the EPRLF in his village to paint and produce banners and posters in support of its aim and activities.  EPRLF was an organization to liberate the Tamil from the torture by the Sri Lankan Government (“SLG”).  EPRLF later became the EPDP, where its paramilitary forces had been fighting (together with what was known as the Indian Peace Keeping Force (“IPKF”)) against LTTE in significant areas of Sri Lanka.

(b)  He had also been asked to paint banners and posters for the LTTE, which he did as he felt that he could not refuse that.

(c)  In 1988, he (with many others on the bus) was taken to an EPRLF training camp while he was going to Colombo.  He was forced to undergo fighting training at the camp.  He was also later forced to prepare propaganda posters and banners which included anti-LTTE slogans.  Eventually, however, he managed to flee the camp and go to Colombo. 

(3)  He (together with other Tamils) had been assaulted and attacked by the SLA and SLP over a period of time between 1984 and 1999, sometimes over the checkpoints when he passed them. 

(4)  By 2003, he had to leave Sri Lanka to go to Hong Kong given his fear of his safety if he remained in Sri Lanka.

(5)  If returned, he is likely to be detained and abused under the guise of Sri Lanka’s emergency regulations and the relevant legislation.

(6)  Such risk is further underlined by his applications in Hong Kong for asylum and protection from the UNHCR and Red Cross, and a subsequent threat made to him in Hong Kong by a member of the Karuna Group.   

B2.  The screening of the CAT claim

17.  On 21 July 2004, the applicant’s CAT claim was processed by the Director in accordance with what is now known as the pre-FB regime. 

18.  In September 2004, the applicant was released on recognizance.

19.  That CAT claim screen process conducted by the Director was completed on 10 June 2006, which included various interviews.

20.  On 30 April 2008, the Director rejected the applicant’s CAT claim. 

21.  However, on 5 December 2008, the court declared in FB v Director of Immigration[4] that the said pre-FB CAT screening process was unfair and unlawful.

22.  As a result, the Government instituted a revised CAT claims screening system in 2009.  Broadly speaking, the system involves a two‑tier process:

(1)   The first tier involves an inquiry conducted by immigration officers of the CAT claim, which involves the completion of a Questionnaire and the supply of supporting documents by the claimant, and interviews of the claimant by immigration officers.  These are then considered by an officer from the Torture Claims Assessment Section of the Immigration Department and a determination is made by that officer for the Director. 

(2)   The second tier comes in when the Director rejects the claim.  Upon the Director’s refusal, the claimant may by way of petition to the Chief Executive under Article 48(13) of the Basic Law asking for reconsideration of his claim.  The petitions are considered and determined by adjudicators[5] specifically delegated for that purpose by the Chief Executive. 

23.  The applicant’s CAT claim was then processed again under the revised screening system (which is the existing system) in January 2010.

24.  He had duly undergone the 1^st tier inquiry with the filing of his Questionnaire and supplementary submission together with his supporting documents.  He also attended an interview with an immigration officer.  During this process, he was legally represented by lawyers assigned to him by the Duty Lawyer’s Service’s CAT Claim Office.

B3.  The Determination

25.  In December 2011, by the Determination, the Director rejected the applicant’s CAT claim.  Essentially:

(1)   The Director found the applicant incredible in relation to various crucial facts of his claim[6]; and

(2)   In any event, the Director did not accept that the applicant had shown that he would be personally subject to any real risk of torture if returned to Sri Lanka[7]. 

26.  Following the Determination, on 20 December 2011, the applicant filed his Petition.  He continued to be assisted by the DLS assigned lawyers in this petition process.  In the Petition, he requested that an oral hearing be held, making reference to the credibility issues relied upon by the Director in rejecting his claim. 

B4.  The Adjudicator’s Refusal Decision

27.  The adjudicator refused the Petition on papers. On 6 January 2012, the Security Bureau notified the applicant the Adjudicator’s Refusal Decision in refusing the Petition.  At paragraph 22 of the written decision of adjudicator, the adjudicator also recorded the Adjudicator’s No Oral Hearing Decision, as the adjudicator stated that she had assumed all the events that the applicant had accounted for in the Questionnaire and the interview did occur. 

28.  It is the adjudicator’s conclusion that, even accepting that those events did occur, the facts as presented as a whole was insufficient to show that he would be at personal, foreseeable, present and real risk of torture if refouled to Sri Lanka[8]. 

29.  The adjudicator’s reasons for coming to that conclusion can be summarised as follows:

(1)  It was the applicant’s case[9] that he would face a real and substantial risk of being detained and tortured by the following entities:

(a)  The SLA;

(b)  The paramilitary groups associated with the SLR; and/or

(c)  The SLG, including paramilitary units of the EPDP; and/or

(d)  The EPRLF;

(e)  The SLP; and/or

(f)  LTTE cadres or former cadres; and/or LTTE members or former members[10].

(2)  Amongst these entities, there were the non-state parties and the state parties.  The non-state parties were the paramilitary groups associated with the SLA and the EPDF, and the LTTE.  The state-parties were the SLA, SLP or the SLG.

(3)  Insofar as the non-state parties are concerned:

(a)  There is no or insufficient evidence in the applicant’s own case to show that (a) he would be at risk from the paramilitary groups, or why he would be so at risk, and (b) in any event, the state participation (either indirectly or by acquiescence as required under Article 3 of the CAT) in the alleged paramilitary groups’ ill‑treatment of the applicant was targeted personally at him.  A general reference to human rights situation in the country of origin is not enough[11].

(b)  No evidence has been adduced to show that, as at the time of the Petition, the EPRLF was still engaged in violent activities or the state involvement in such activities (if any) or that the applicant would be at risk from the post-conflict EPRLF times[12].

(c)  Even though there was no doubt that the LTTE and the SLG had committed violations of human rights generally, there was no evidence adduced by the applicant to show that he would be at risk of torture from LTTE members[13].

(4)  Insofar as the state parties are concerned:

(a)  Their main concern was to eliminate the possibility of LTTE resurgence, and Tamil ethnicity was only one of the risk factors to be taken into account.

(b)  Taking into consideration all the applicant’s accounts of events made in the Questionnaire and the interview, including the attacks and his activities[14], the evidence shows that the applicant would certainly not fit the profile of the type of former LTTE members or sympathisers that the Sri Lankan authorities were on the lookout for.

(c)  In the premises, even though the applicant may be detained and questioned upon his return to Sri Lanka, the adjudicator was not satisfied that he would be exposed to a personal risk of being subjected to torture.  In relation to this, the learned adjudicator reminded herself that the standard of proof required of the applicant in establishing the elements of torture under the CAT was a relatively low: the risk of torture must be assessed on the grounds that it goes beyond mere theory or suspicion, but does not have to be highly probable[15].

30.  As I mentioned above, on 4 May 2012, the applicant applied for leave to apply for judicial review against the Adjudicator’s Refusal Decision, the Adjudicator’s No Oral Hearing Decision and the Secretary’s Decisions.  

31.  Lam J granted leave on papers on 15 May 2012. 

C.   THIS JUDICIAL REVIEW

C1.  The systemic challenge

32.  In substance, under this ground, it is the applicant’s case that, given the “high standard of fairness” required  in processing and determining CAT claims, as laid down by the Court of Final Appeal’s judgment in Secretary for Security v Prabakar[16], it is unlawful (as it is unfair procedurally) for an adjudicator (a) not to afford a petitioner an oral hearing and without (i) giving notice of his or her intention to do so, or (ii) hearing representations from the petitioner on whether to do so or not, and (b) in any event not to give reasons for not affording an oral hearing.

C1.1.   Relevant legal principles

33.  Before I deal with the applicant’s specific arguments made in support of this ground in greater detail, it may be helpful to first set out what I regard as some relevant applicable legal principles.

34.  First, as a matter of law, in the context of administrative decisions, there is no absolute right to an oral hearing. Whether an oral hearing is necessary will depend upon the subject matter and circumstances of the particular case and the nature of the decision to be made. Provided that they achieve the degree of fairness appropriate to the task, it is for the decision making bodies to decide how they will proceed and for them to decide whether an oral hearing is necessary: R v Army Board of the Defence Council ex parte Anderson [1992] QB 169 at 187 per Taylor LJ; Liu Pik Han v Hong Kong Federation of Insurers Appeal Tribunal (unrep, HCAL 50/2005, 11 July 2005) at paragraph 1(iii) per Lam J (as the learned Judge then was). 

35.  Second, the extent and content of the procedural fairness required under the law is to be determined by reference to the nature of the subject matter decision and the circumstances: R v Secretary of State ex parte Doody [1994] 1 AC 531, at 560D-G per Lord Mustill.

36.  Third, it has recently been laid down by the Court of Appeal in TK v Jenkins[17] that, even under the “high standards of fairness” as required:

(1)   A torture claimant still bears the burden of proof to make out that his case falls within the requirements under the CAT (paragraph 35).  High standards of fairness do not entitle the torture claimant, having stated a claim, “to simply sit back and require the Director to disprove it” (paragraph 25). 

(2)   Where a claimant is represented and assisted by duty lawyers, he is expected to conduct his own investigation and obtain information and materials that he requires to prove his case.  The bottom line of the high standards of fairness required in the screening process boils down to fairness and commonsense (paragraph 23).

(3)   Moreover, whether high standards of fairness may require the Director or the adjudicator to probe further into an answer or an omission is dependent on the facts and circumstances of each case.  For instance, where it is readily apparent that something had gone amiss such as the “proof documents” in Prabakar that the applicant there had mentioned, but was unable to produce and did not produce, or that a point has obviously been overlooked or missed out.  There may however be no duty to keep probing or inquiring where the objective circumstances make 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.  Everything depends on the facts of each case (paragraph 24).

37.  Fourth, for the determination of a CAT claim:

(1)   The aim of the determination is to establish, among others, whether the individual concerned would be personally at risk of being subjected to torture (as understood under the CAT) in the country to which he or she would return.  The exercise is a risk assessment.  The risk must be “foreseeable, real and personal”.  The risk needs not be highly probable, but it must be personal and present[18].

(2)   The existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not by itself constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his return to that country.  Additional grounds must exist to show that the individual concerned would be personally at risk.  Similarly, the absence of such a pattern does not mean that a person cannot be considered to be in risk of being subjected to torture[19].

38.  Bearing these general principles in mind, I would now look at the individual arguments advanced by the applicant in support of the systemic challenge.

C1.2. A systemic procedural unfairness in the absence of no oral hearings

39.  As a start, in my view, the authorities have firmly established that, even in torture claim cases, and notwithstanding the high standards of fairness required, a claimant does not enjoy an absolute right to an oral hearing.  Whether an oral hearing is required as a matter of fairness must be dependent on the individual circumstances of the case.  See: FB v Director of Immigration [2009] 2 HKLRD 346, at paragraph 216 per Saunders J; Centeno v Director of Immigration (unrep, HCAL 50/2012, 9 May 2012) at paragraphs 10-19 per Lam J (as he then was).

40.  This is particularly so as it is now confirmed by the Court of Appeal in Hong Kong that the claimant bears the initial burden to prove his case under the CAT, and it is only in appropriate cases that the adjudicator or the Director is required to “probe” further into the evidence or case to assist it in the assessment whether the claimant would be personally at risk of being subjected to torture when he returns to his country.  See paragraph 36 above.

41.  In relation to this, it is also pertinent to note (as submitted by Mr Shieh, SC for the Secretary and the Director) that even CAT Committee’s own cases are not necessarily dealt with by way of oral hearings, in particular in cases where it was in the opinion of the Committee that the claimant has failed to prove his case.  For example, in M.M. v Canada, supra, where the complainant asserted that if he was deported to Burundi, he would be subjected to torture, in violation of Art 3 of CAT, the Committee took the view that the fact that the complainant was not called to a hearing was not of itself a procedural irregularity, insofar as his arguments had been considered by the Canadian authorities.  It was held that the evidence received by the Committee did not show that the State Party's examination of the complainant's allegations was flawed[20].  Also in S.N.A.W. v Switzerland (Communication No 231/2003), one of the complainants requested the Committee to proceed with an independent assessment of the authenticity of the documentary evidence and to grant a personal hearing in order to witness his emotional distress when talking about his torture experiences.  The Committee did not accede to this request, since it found that the complainants had not adduced sufficient grounds in relation to their Art 3 case for believing that they would run a substantial, personal and present risk of being subjected to torture upon return to their country of origin, and therefore it was not necessary to consider the complainants’ requests[21].

42.  I do not think Mr Kat for the applicant contends otherwise that every petitioner under a torture claim is entitled as of right to an oral hearing.  This must be right for the above reasons.

43.  Mr Kat’s point is more that, where an adjudicator is intending not to hold an oral hearing, the high standards of fairness require that, before moving on to decide the petition on papers:

(1)   The petitioner must be given notice of that intention;

(2)   The adjudicator should give his reasons as to why he does not intend to give an oral hearing; and

(3)   The petitioner must then be given a chance to make representations on those reasons and why an oral hearing should be given.

44.  In the premises, Mr Kat further submits, the present system of an adjudicator determining a petition on papers without an oral hearing and without satisfying the above steps is systemically procedurally unfair, and therefore unlawful.

45.  I am unable to accept Mr Kat’s submissions.  In my view, there is no systemic procedural unfairness of the present practice of adjudicators in determining petitions on papers on selected individual cases.  My reasons are as follows.

46.  First, as a matter of fact, petitioners (as the applicant in the present case) are informed beforehand that adjudicators may decide not to hold an oral hearing in determining the petitions.  See Notice to Persons Making a Claim[22], and the Notice of Petition[23]. There is therefore no question that the petitioners generally are not aware of the fact that the adjudicators may not offer an oral hearing to them in determining their petitions.

47.  In the circumstances, and given that he bears the initial burden of proof, it is incumbent upon a petitioner to put in all the matters, materials, information and submissions he intends to rely on to prove that his case falls under Art 3 of the CAT to enable the adjudicator to consider his petition.  And given that he has been informed that the adjudicator may decide not to hold an oral hearing when determining the petition, it is also incumbent upon him (and his legal representatives) to put in any submissions (legal or otherwise) as to why he thinks in the circumstances of his case that an oral hearing should be held.  This is particularly so as, under the present screening system, he would be assisted by lawyers assigned to him by the Duty Lawyer Scheme (“DLS”): See paragraph 36(2) above also.  As a matter of fact, the applicant in the present did exactly that by putting in his Petition a request (with supporting reasons) for an oral hearing.

48.  In light of these, I do not see any risk of prejudice that would be caused to the petitioner without having been informed again that in his case, the adjudicator has in fact decided not to hold an oral hearing before determining the petition.  Even if the adjudicator were to inform again that there would be no oral hearing, there is nothing further (subject to my consideration below of the applicant’s submissions on the right to be informed of the reasons for not having an oral hearing) that the petitioner would be able to further do, which he could not have been able to do earlier in submitting in the petition as to why there should be an oral hearing.

49.  Second, as to whether the high standards of fairness require that the adjudicator should give reasons for not holding an oral hearing before deciding the petitions, this must be assessed in the following context:

(1)  If the adjudicator decides not to hold an oral hearing, but proceeds to decide the petition in the petitioner’s favour, there would be no procedural fairness for not holding an oral hearing without beforehand giving any reasons, as the petitioner is successful in his petition and thus simply not prejudiced by this.

(2)  Therefore, any complaints against not being provided with the reasons for not holding an oral hearing must be in the situation where the adjudicator determines against the petition on merits.  

(3)  However, in those circumstances, if the reasons (or some of the reasons) for rejecting the petition on merits can be faulted on the basis that it is unfair and unlawful for the adjudicator to reach those conclusions without holding an oral hearing so as to give the petitioner a proper chance to respond to, the petitioner would be entitled to challenge that determination by way of judicial review on the basis of, among others, procedural unfairness.  The petitioner’s right to a lawful and procedurally fair procedure is therefore not prejudiced or diminished by not being given the reasons for not holding an oral hearing beforehand.

50.  However, to support his contentions that the petitioners should generally be given the reason for not holding an oral hearing beforehand, Mr Kat relies on a number of additional arguments as follows.

51.  Mr Kat refers this court to Lord Bingham’s judgment in R (West) v Parole Board [2005] 1 WLR 350 (HL).  In that case, the claimants were once-released on licence prisoners, who had however been recalled to prison by the Secretary of State.  They applied for judicial review against the parole board’s decisions not to recommend their respective re-release on the basis that the board did not hold an oral hearing in its determination.  The claimants argued that they were entitled to an oral hearing under Article 6(1) of the Convention for Protection of Human Rights and Fundamental Freedoms (“the Convention”), as scheduled to the Human Rights Act 1998 in the UK.  The claimants’ judicial reviews were dismissed at first instance and by the Court of Appeal.  The House of Lords however allowed the appeals.

52.  Relying on this authority, Mr Kat asks this court to take guidance from Lord Bingham’s observations[24] that:

(1)  The European Court recognise that oral hearings provide a fundamental procedural guarantee in matters of deprivation of liberty;

(2)  The Canadian, New Zealand, US and Australian courts have all upheld the right to an oral hearing in matters of liberty;

(3)  Oral hearings are routinely held in England in the case of life sentence prisoners and intermediate sentence; and

(4)  The claimant’s right to effective representation requires that he should know the points which concern the decision maker.[25]

53.  Developing on these observations, which were made in (according to Mr Kat) an arguably less vital context, Mr Kat submits that it must be a fortiori important and fundamental in the context of torture claims (where life and limbs are at stake) that an adjudicator must provide reasons for his intention not to hold an oral hearing, so that the petitioner could tailor and fashion his representations in response to issues or questions that may concern the adjudicator.

54.  With respect, I find these submissions relying on West misplaced:

(1)  Even in that case, the House of Lords has held[26] that:

(a)  Whether an oral hearing is necessary would depend on the circumstances of each case, and that it would not be required in every case, but is likely to be called for where facts are in issue that could affect the outcome or where it may otherwise contribute to achieving a just decision. 

(b)  On the facts of the claimants’ cases, the board had breached the duty of procedural fairness owed to them in not offering them oral hearings.

(2)  Thus, the House of Lords allowed the judicial review against the parole board’s substantive decisions on the facts of that case and the particular conclusions (and reasons for those conclusions) made in the substantive decisions that it was procedurally unfair for the board to reach those conclusions without offering the claimants an oral hearing. 

(3)  That was thus a successful challenge on the relevant substantive decisions on the basis that, on the facts of that particular case in reaching those decisions, it was procedurally unfair not to have an oral hearing.  It was not a challenge that when deciding not to hold an oral hearing but before reaching the substantive decisions, the board should first give reasons to the claimants as to why it decided not to hold an oral hearing and let them respond to those reasons first. 

(4)  This authority therefore rather supports the observations I have made at paragraph 49 above as to why the petitioner’s right to procedural fairness in a torture claim would not be prejudiced or diminished by reason of any systemic irregularity, as he could (in a right case) challenge the adjudicator’s substantive decision on the basis that the adjudicator could not have fairly arrived (on merits) in his determination of the concerned petition without a proper oral hearing.  However, this must be (as the House of Lords says in West) viewed on the basis of the facts of each case.

(5)  Moreover, in circumstances where there is no oral hearing but the petition is dismissed on papers, Mr Kat’s contention that the petitioner should be told (by way of reasons) the points or questions that concern the adjudicator before he finally determines the petition is tantamount to effectively asking the adjudicator to provide the petitioner beforehand a draft decision of the petition for comments.  In my view, in light of my observations at paragraph 49 above, no degree or extent of procedural fairness could have demanded that.

(6)  Although the practices of tribunals in other jurisdictions may be of reference purpose, it does not follow as a matter of logic that, since those procedures provide, say, for an absolute right to an oral hearing, a procedure embodying a lesser right must therefore be unfair.  The question of whether a specific procedure relating to oral hearing adopted in Hong Kong in dealing with CAT petitions is a fair one must still be decided in accordance with the applicable legal principles on procedural fairness as outlined above.  For example, those jurisdictions may be prepared (for whatever reasons say that are considered apposite to suit the circumstances – political or otherwise, of those jurisdictions) to provide a procedure with a standard which is higher than what may be demanded for by the general legal principles.  It does not however mean that a procedure embodying a lesser right must fall below what those relevant legal principles would call for.

55.  Mr Kat further says that the petitioner’s right to an oral hearing, failing which to be given reasons beforehand, is only consistent with Article 10 of the Hong Kong Bills of Right Ordinance (Cap 383) (“BORO”), which provides for a fair hearing.

56.  I do not accept that:

(1)  In Heather Moor & Edgecomb Ltd v United Kingdom[27], the European Court of Human Rights has held that, under Art 6(1) of the Convention, which provides for a right to a fair hearing (and which Mr Kat submits is equivalent to Article 10 of the BORO), the holding of an oral hearing is not an absolute obligation.  The European Court explains that on the basis that there may well be proceedings in which an oral hearing is not required, where the courts, or other deciding authority, may fairly and reasonably decide the cased on the basis of the parties’ written submissions and other written materials.  It is also said that considerations of efficiency and economy may also be relevant in certain contexts.

(2)  Given that there is no absolute right to an oral hearing, my views set out in paragraph 49 apply and Article 10 of the BORO does not take the matter any further.

57.  Mr Kat finally emphasises that the context of a torture claim is a very serious and fundamental one, where life and limbs are at stake.  The procedural fairness that the law demands in such a context relating to oral hearings should consist of the elements that he has submitted above.

58.  I am equally not convinced.  The “high standards of fairness” requirement laid down in Prabakar is made in the context that “life and limbs” are at stake.  At the same time, it is now held that even under the “high standards of fairness” context, the relevant extent of the procedural fairness demanded of is still to be determined in accordance with the principles I have summarised above at paragraphs 34-37 and 39. 

59.  As such, I cannot see how the context of “high standard of fairness” would have changed the observations I have made at paragraph 49 above, concerning whether there is a real risk of prejudice caused to the petitioner for not being given a beforehand reasons for not holding an oral hearing.

60.  In premises, I do not find any of these additional arguments advanced by Mr Kat affect my above views as to why no real risk of prejudice would be caused to a petitioner if the adjudicator disposes of a petition without an oral hearing, and without giving the petitioner his reasons for not holding an oral hearing before so determining the petition.

61.  I therefore do not think there is any systemic procedural unfairness per se in the adjudicators’ practice of not providing reasons to the petitioners beforehand for not holding an oral hearing in the determination of selected petitions.

62.  Third, in light of my conclusions above, I do not think there is anything further in the contention that the petitioners should be provided an opportunity to make representations in response to the reasons for not holding an oral hearing. 

63.  For all the above reasons, I reject the contentions that there is a systemic procedural unfairness in the present practice of adjudicators in disposing of selected petitions on papers, and without (a) informing the petitioners again that he (the adjudicator) intends to do so in that particular case and (b) providing the reasons for not holding an oral hearing beforehand. 

64.  Whether the procedure itself has caused any risk of prejudice to a particular petitioner by reason of procedural unfairness must of course still be determined on a case-by-case basis, depending on the individual circumstances and facts of that case, and the adjudicator’s reasons for dismissing that petition.

65.  This ground of judicial review therefore fails.

C1.3.   Challenge on the Secretary’s Decisions and the Adjudicator’s    Adoption Decision

66.  This is part of the applicant’s systemic challenge.  Under this ground, the applicant’s bases of the challenge are in summary that:

(1)  There are various instructions provided in the Brief Notes, the Practice Directions and the Petition Form which refer to the possibility that the adjudicators may deal with the petitions on papers without oral hearings and without giving reasons.  These instructions properly read are mandatory in nature, and effectively “directing” the adjudicators to follow them.  This is fettering the adjudicators’ discretion to determine what should be the fair procedure to deal with the petitions on a case-by-case basis.  These are unlawful and procedurally unfair.

(2)  In any event, the Chief Executive has never delegated to the Secretary the power generally to deal with the petitions or specifically to deal with procedures relating to petitions. The Secretary therefore has no authority to issue documents of such a nature.

67.  To properly understand the applicant’s specific arguments made in support this ground, it is necessary to first set out below the relevant parts of these documents referred to in the Amended Form 86.

C1.3.1.   The Notice of Petition and the Petition Form

68.  Every CAT claim applicant intending to serve a petition relating to his CAT claim is given the Notice of Petition (“the Notice”), which provides instructions to him on the relevant procedures in issuing a petition.  One of these instructions is that he should make his petition in the Petition Form.

69.  Further, in the Notice, it is indicated to the petitioner that there will be an oral hearing “if…required”. 

70.  Further, section 4 of the Petition Form also provides that:

“Section 4: Oral Hearing

Only if the circumstances warrant, the Petition Team will arrange an oral hearing with you. The hearing will be conducted in private. You will be notified of the details of the oral hearing if one is required. Otherwise the Adjudicator (Torture Petitions) will make a Decision on your petition without further notice. Details of the procedures for conducting the oral hearing can be obtained at www.sb.gov.hk.” (applicant’s emphasis)

C1.3.2.   The Brief Notes

71.  In January 2011, a set of “Brief Notes to Adjudicators” (“the Brief Notes”) was caused to be issued by the Secretary. In August 2011, the Brief Notes was amended and re-issued.

72.  The following parts of the Brief Notes as amended are relied on by the applicant in this judicial review:

“7.2 The CFI’s judgment in FB and others v Director of Immigration (Appendix C) provides further requirements on the high standards of fairness in handling torture claims as follows:

…

(d) In most cases of a petition, the relevant factors will favour the view that an oral hearing should be permitted as an aspect of procedural fairness. It does not follow that every petition will require both an oral hearing or the Petitioner to be represented at that hearing. It will be necessary for the authority in each case to have regard to the appropriate relevant considerations and to make an appropriate determination.

…

(f)   The high standards of fairness required in the assessment of Convention claims, and the rules of natural justice, require that the Secretary in dealing with a petition must give adequate reasons for that decision.”

“11. Oral Hearings

11.1 The Adjudicator assigned to handle a petition shall review the case based on available information and decide whether to conduct an oral hearing or whether the petition is to be handled by means of a paper review. An oral hearing may be dispensed with where the Adjudicator is satisfied that the petition can be justly determined on the papers. In deciding whether an oral hearing is needed, the Adjudicator will take into account the circumstances of the case, including but not limited to considerations that all relevant evidence has been presented and the determination of the facts shall be based on clear and cogent reasons.

11.2     An oral hearing should normally be conducted under the following circumstances if the Adjudicator finds that:

(a)  There are credibility issues crucial to the Decision of the petition which The Director’s refusal was based on credibility findings that were not adequately addressed during the interviews or supported in the assessment by the Director;

(b)  New evidence is raised in the petition stage that is relevant to the determination Decision (including any change in conditions in the Claimant’s country of origin) and clarification via correspondence is inexpedient or insufficient and that holding an oral hearing is therefore required; and/or

(c)  An apparent breach of procedural requirement has occurred which could have limited the ability of the Claimant to establish his claim (e.g. inadequate interpretation, denial of the opportunity to present relevant evidence, etc.).

11.3   Should the Adjudicator require an oral hearing, both the Director and the Petitioner or his representative will be informed of the date, time and venue of the oral hearing by the Petition Team.

13   Procedures regarding Hearings

13.1.  In general, oral hearings will proceed as follows:

(a)-(g) [A short form oral hearing in adversarial form, with oral evidence from the petitioner, cross-examination and speeches.]

(h) the Adjudicator may deliver a Decision of the petition at the end of the hearing ex-tempore, or may “hand down” his written Decision to the parties at a later date, usually by post, or he may deliver his Decision orally to the parties at a date to be announced.

……

15  Paper Reviews

15.1     If, after considering the Notice of Petition and relevant information available including any further particulars which may have been furnished by either party, the Adjudicator is satisfied that the petition is of such a nature that it can be justly determined without an oral hearing, he may dispense with an oral hearing and proceed to decide whether or not to allow the petition.  He will make a Decision on the petition by way of a Paper Review without further notice to any party.  Although an Adjudicator may dispense with an oral hearing in the above circumstances, he must ensure that in the event the Director makes any submissions in relation to a petition, the Petitioner has at least an opportunity of responding by way of written representations.

For cases which can be justly decided without an oral hearing, the Adjudicator should, having regard to relevant information available and the circumstances, review the merits of the determination made by the Director, and proceed to decide whether or not to allow the petition.  If he is minded to conduct only a Paper Review, the Petition Team will notify both parties of the Adjudicator’s intention, in order to ensure that the parties have made full submissions on their respective cases.  The parties concerned should be informed that the Adjudicator’s decision will be made after 14 calendar days and that any further submissions received from them within this period will be considered by the Adjudicator prior to making his decision.  If any of the parties do not respond within the specific time, the Adjudicator will make a decision on the petition without further notice.”

(Emphasis in bold added by the applicant; amendments, as underlined or struck-through, are in the original).

73.  Paragraph 11.1 of the Brief Notes further says that the adjudicator shall review the case on petition on “available information” and decide whether to conduct an oral hearing or proceed “by means of a paper review”.

C1.3.3.   The Practice Directions (“the PDs”)

74.  The PDs were initially drawn up in June 2010 by an adjudicator.  They were then circulated to be “settled” by the Department of Justice.  The PDs was formally published and issued on 19 August 2010.  The bottom of the last page of the PDs bears the name of the Security Bureau.  The PDs are also circulated to the DLS for reference.

75.  In March 2011, a revision of the PDs in the form as challenged in this application and corresponding revisions to the Brief Notes and the Petition Notice were proposed by the Secretary’s officers to the adjudicators.  The adjudicators agreed to the proposed changes.

76.  The purpose of the PDs is set out at paragraph 1.2 as follows:

“1.2 These Practice Directions, setting out the practice and procedure adopted by the Adjudicators, aim to provide guidance to parties involved in the petition process relating to torture claims.” (My emphasis)

77.  Further, the following provisions of the PDs are further relied on by the applicant his judicial review:

“Notice of Petition and Time Limitation

4.1 An unsuccessful Claimant may lodge a petition to the Chief Executive in the specific form (Annex 1) duly completed either in English or Chinese and lodged with the Petition Team of the Security Bureau in Room 3007-10, 30/F, Immigration Tower, 7 Gloucester Road, Wanchai, Hong Kong within 14 calendar days from the date of the Director’s refusal letter.

……

5. Directions Hearings

5.1 An Adjudicator may order a Directions Hearing for the purpose of inter alia determining an appropriate date to be fixed for the hearing of the petition, the estimated duration of the hearing, and any matter incidental to or in respect of the petition.

5.2 The Petition Team shall arrange for a Directions Hearing if so instructed by the Adjudicator. The Petition Team shall inform the parties of the arrangements made. Where the initial arrangements are varied, sufficient notice must be given to the parties.

5.3 All parties shall appear either in person and/or by legal representation at the Directions hearing. If a party does not appear and is not legally represented at that hearing, and has not previously given any sufficient reason for being absent, the Adjudicator may make such orders or directions as he thinks fit including those adverse to the interest of the party being absent. The absent party may be treated as having forfeited his right to be heard.

5.4 An Adjudicator may set aside or vary the directions given at a Directions Hearing, or give further directions to the parties.

5.5 If the Petitioner fails to comply with any directions given by the Adjudicator, the Director may apply for the petition to be dismissed. An Adjudicator may at his discretion grant such application for dismissal of the petition.

6. Oral Hearings

6.1 An Adjudicator may, without conducting an oral hearing, consider the materials submitted by the parties and proceed to make his final Decision regarding a petition. Where the circumstances warrant, the Adjudicator may conduct an oral hearing on a petition.

……

9. Procedures regarding hearings

9.1 Should the Adjudicator require an oral hearing, the Petition Team will inform both the Director and the Petitioner or his representative of the date, time and venue of the substantive hearing by way of a Notice of Hearing (Annex 2). Both parties are required to notify the Petition Team at least five working days before the date of the hearing if there is a change of legal representative(s) and/or witness(es).

9.2 In general, oral hearings will proceed as follows:

(a)-(h)  [As Brief Notes §13.1]

……

14. Paper Reviews

14.1 If, after considering the Notice of Petition and relevant information available including any further particulars which may have been furnished by either party, the Adjudicator is satisfied that the petition is of such a nature that it can be justly determined without an oral hearing, he may dispense with an oral hearing and proceed to decide whether or not to allow the petition. He will make a Decision on the petition by way of a Paper Review without further notice to any party. Although an Adjudicator may dispense with an oral hearing in the above circumstances, he must ensure that in the event the Director makes any submissions in relation to a petition, the Petitioner has at least an opportunity of responding by way of written representations.[28]

 

Where the Adjudicator considers that a Paper Review will suffice, the Petition Team will notify the parties of the Adjudicator’s intention. The parties will be given 14 calendar days from the date of the Notice of Paper Review for making further representations received within the specified period. If any of the parties do not respond within the specific time, the Adjudicator will make a Decision on the petition without further notice to that party.

17. Miscellaneous

Record of Hearing

17.2     As a general rule, the Petitioner should attend the oral hearing if there is one. If a Petitioner is in custody, the Director’s representative shall inform the Adjudicator and the Adjudicator may request the Director of Immigration or the Director for Correctional Services, as the case may be, that the Petitioner in custody be brought to the petition hearing.  Notwithstanding that, [A] Petitioner is not obliged to attend the hearing where prior notice has been given or where sufficient reasons have previously been provided for his absence.      ”

(Emphasis in bold added by the applicant; amendments, with underlining and striking-out are in the original)

78.  Having set out the relevant parts of these documents, I now turn to the applicant’s specific arguments raised in support of the challenge relating to them. 

C1.3.4.   Fettering of discretion - the documents’ instructions regarding   oral hearings are mandatory and directive in nature

79.  The applicant’s arguments under this ground are that: 

(1)  The adjudicators should retain full discretion to decide (in accordance with established legal principles) whether and when oral hearings should be granted for the purpose of determining petitions. 

(2)  However, on a proper reading of these documents, their “instructions” on whether and when oral hearings would be granted are mandatory in nature, and binding on the adjudicators.

(3)  As such, these instructions amount to fettering the adjudicators’ discretion in deciding the relevant procedures.  They are therefore unlawful in the public law sense.

80.  I am not persuaded by these arguments for these reasons.

81.  First, on an objective reading and understood in their ordinary meaning, the wording used in the Brief Notes and the PDs show that these documents are intended to be for general guidance only and the adjudicators are free to decide on a case-by-case basis when and whether an oral hearing should be held in determining a petition:

(1)  Paragraph 1.2 of the Brief Notes provides expressly and clearly that: “These notes aim to provide general guidance to Adjudicators on how petitioners made by unsuccessful claimants under the [CAT] are to be handled”. (emphasis added)  The use of the express words “general guidance” set out this very effect and intention of the Brief Notes.

(2)  Paragraph 11.1 of the Brief Notes provides that: “The Adjudicator shall ... decide whether to conduct an oral hearing ... An oral hearing may be dispensed with where the Adjudicator is satisfied that the petition can be justly determined on the papers.  In deciding whether an oral hearing is needed, the Adjudicator will take into account the circumstances of the case...” (emphasis added)  The use of the word “may” shows that the adjudicators are free to decide whether or not to grant an oral hearing.  Further, the reference that an adjudicator may decide not to hold an oral if he thinks that the petition can be justly determined on papers by taking into account the circumstances of the case is consistent with the general legal principles that an applicant is not entitled as of right to an oral hearing as I have summarised above.  Moreover, I also accept Mr Shieh’s submissions that the use of the words “may be dispensed with” presupposes something that is prima facie there in the first place.  This therefore can hardly be read as fettering the adjudicators’ discretion in deciding whether and when to hold an oral hearing.

(3)  Although paragraph 11.2 of Brief Notes sets out a list of suggested circumstances where an oral hearing may be given, these are preceded by the words: “An oral hearing should normally be conducted under the following circumstances…” (emphasis added).  The additional use of the word “normally” (understood in its ordinary meaning) shows that the circumstances provided after these words are not intended to be the only situations where the adjudicators could grant an oral hearing.

(4)  Paragraph 1.2 of the PDs provides that “These Practice Directions set out the practice and procedure adopted by the Adjudicators aim to provide guidance to partiesinvolved in the petition process...” (emphasis added).  Similarly the use of the words “to provide guidance” sets out expressly and clearly the object and intent of the PDs, which is only to provide a general guidance.

(5)  Further, I agree with Mr Shieh’s submissions that, in terms of the August 2011 version of the PDs, where paragraph 6.1 states that the adjudicators “may, without conducting an oral hearing” determines the petitions on the materials submitted to him connotes a discretion.  As to the underlying test or criteria, it is that of fairness and justness, and that is consistent with the legal principles applicable to deciding whether there should be an oral hearing for the determination of a petition.

82.  Secondly, when the relevant instructions regarding oral hearings in the Brief Notes and the PDs are considered (as they should be in my view) in the following context, their non-mandatory nature are further underlined:

(1)  The adjudicators themselves are all retired judges or judicial officers.  It would take a lot more to show that, even after reading those words and phrases in the instructions that I have highlighted above, they would regard the instructions as mandatory in nature, and are to strictly prescribe them as to whether and when an oral hearing would be granted. 

(2)  The evidence shows that the adjudicators had been involved in the preparation and drafting of the Brief Notes and PDs.  These words and phrases (which denote general discretion) have been incorporated into the documents after the adjudicators’ own due consideration.

83.  Finally, I am also satisfied that these instructions in the Brief Notes and PDs do not result in any systemic procedural unfairness per se since:

(1)  They only set out the general position of the law (as I have concluded above) regarding whether and when an oral hearing should be granted as a matter of fairness.

(2)  The petitioners have been informed by way of the Notice that the petitions may be determined without an oral hearing.  Thus, as I mentioned above, there is a reasonable opportunity for a petitioner to put in submissions and materials to support that an oral hearing should be given, if they so request one.  For example, as a matter of fact, the applicant in the present case (assisted by his lawyers) did make the request in the Petition for an oral hearing, and put in submissions in support of that.

84.  The above reasons apply with equal force to the nature of the Notice as well.  They do not carry any mandatory directions on whether and when an oral hearing would be held for the determination of a petition. The fact that it has asked the petitioner to use the Petition Form does not take the matter any further.  For the purpose of efficient and effective administration of a petition process, it must be open to the Security Bureau to prepare and issue standard Petition Form for the petitioners to use, as long as there is nothing in the Form which would cause any recognised unfairness, which is (as I have concluded) not the case here.  See also paragraph 93 below.

85.  I therefore reject the applicant’s submissions that the relevant instructions in the Notes, the Brief Notes and the PDs amount to a systemic fettering of the adjudicators’ discretion.

C1.3.5.   Unlawful for the Secretary to issue the Notice, the Brief Notes    and the PDs

86.  Under this ground, the applicant’s submissions can be summarised as follows:

(1)  The Notice, the Brief Notes and the PDs were the work products of the Security Bureau under the direction of the Secretary.

(2)  However, there has been no delegation of power by the Chief Executive to the Secretary either to determine the petitions or to decide on the procedures relating to the determination of the petitions.

(3)  In the premises, the Secretary simply has no direct or incidental power or authority to issue these documents.  The decisions to issue them are therefore unlawful.

87.  I do not accept these submissions.

88.  Fundamental to the applicant’s arguments under this ground is that the Brief Notes and the PDs were factually the work products of the Security Bureau.  In other words, the essential contents of them were the products of the Security Bureau. 

89.  Whether that is the case is a matter of evidence, and the court looks to substance rather than to the form.

90.  In relation to this, the Secretary has filed evidence on the genesis of the Brief Notes and the PDs.  The evidence shows in summary that:

(1)  The Brief Notes were initially prepared by the Security Bureau to serve as an “introductory package” to appointed adjudicators. These were ultimately reviewed by the adjudicators in their entirety and revised[29].

(2)  The first set of the Brief Notes was then issued in December 2009[30].

(3)  The PDs were in fact initiated by one of the adjudicators and started as fruits of the adjudicators’ own drafting. The drafts were circulated among the adjudicators for comments and the Department of Justice’s legal advice for input.[31]

(4)  The first set of the PDs was issued and published on the Security Bureau’s website in August 2010 and a copy was sent to the DLS for reference and to make it available to the petitioners in general[32].

(5)  In August 2010, there was a start of the review of both the Brief Notes and the PDs.  The adjudicators and the Department of Justice both provided input in the review process[33].

(6)  One set of the revised Brief Notes and PDs was issued in the interim in January 2011 with certain changes in the language[34].

(7)  The review exercise then continued. The Security Bureau also set out its thinking behind some revisions which led to the ultimate version dispensing with the need for a notice of paper hearing[35].  The ultimate version of the Brief Notes and PDs with the relevant parts for the purpose of this application has been quoted above with tracked changes.

91.  Further, it is the Secretary’s evidence that the Security Bureau was not involved in the decision making process in the drafting of these documents.  It has just provided secretariat and administrative support in the preparation and the ultimate issuing process[36].

92.  Looking at the evidence as a whole, I am satisfied that:

(1)  In substance the Brief Notes and the PDs were the work products of the adjudicators themselves.  Although the Department of Justice and the Security Bureau had provided inputs to their drafting and revisions, the essential contents of these documents were based on the decisions of the adjudicators, who had taken into account these inputs. 

(2)  In causing their actual issuance, the Security Bureau only provided secretariat and administrative support.  The fact that the Brief Notes and the PDs bear the name of the Security Bureau does not take the matter any further.  This is equally consistent with the fact (as the evidence says) that it was the Security Bureau who carried out the actual mechanics of “issuing” the Brief Notes and the PDs by liaising the review exercise, putting the final product into print, putting the documents up on their own website and sending them to the DLS for general circulation and reference.

93.  In relation to the similar contention for lack of authority to issue the Notice and the Petition Form, there is also nothing in it.  The provision of a Petition Form and the Notice is clearly part of the efficient management of the mechanical aspects of the application procedure. This must be within the purview of the Security Bureau carrying the responsibility of providing administrative and secretariat support for the petition process. This has nothing to do with the determination of the petitions themselves.

94.  Given my conclusion above, the applicant’s fundamental argument in support of this ground falls away, and so must the ground itself.

95.  I therefore also reject this ground of judicial review.

C1.4.   Conclusion on the systemic challenge

96.  All the grounds raised to judicial review the various decisions based on a systemic challenge are rejected. 

C2.  The specific challenge on individual circumstances

97.  Having disposed of the applicant’s systemic challenge, I now turn to the applicant’s judicial review based on the individual circumstances of his case.

98.  In gist, the applicant contends under this ground that the adjudicator made material errors of fact in coming to the Adjudicator’s Refusal Decision, and she also erred in her conclusions in the decision by way of illogicality, irrationality and/or that she drew unfounded inferences of fact against the applicant.  The applicant further argues that the lack of an oral hearing in the circumstances of this case amounts to a procedural unfairness in light of the reasons and conclusions made in the adjudicator’s decision.

99.  The specific allegations of material errors of facts, omissions of critical facts, illogicality, irrationality and unfounded inferences made in the Adjudicator’s Refusal Decision and relied on by the applicant are set out in the Amended Form 86 and summarised by Mr Kat (together with Mr Parker) in their Opening Notes. 

100.  I will now deal with these contentions individually.

C2.1.    The individual complaints

101.  First, it is said that in her risk assessment, the adjudicator had failed to take into consideration relevant matters, which are[37]: (a) the pursuit by SLA and the SLP of the applicant in connection with his brother, a wanted LTTE fighter now in hiding overseas, and (b) the records of that pursuit held by and available to the Sri Lankan authorities should the applicant be refouled. 

102.  There is nothing in this complaint:

(1)  The applicant’s family members’ roles in LTTE have been set out in the adjudicator’s written decision at paragraph 31.  In particular, in relation to the applicant’s brother’s involvement, it is summarised therein as follows:

“The Petitioner’s brother [A] joined the LTTE when he was 16 years old. He is currently hiding in Irag, afraid to return home as he had worked in the intelligence unit that was responsible for ‘formulating plans to attack Sri Lankan Army bases’. The Petitioner did not reveal the date [A] stopped working for the LTTE, or the date [A] left Sri Lanka. It is known that after about 7 years, he stopped working for the LTTE, after which he was employed as a security guard for the UNHCR ‘for a few years’. Therefore [A] may have only worked for the LTTE for 7 years and quit when he was around 23 years old. There is no indication of the type of work he did when he was employed in the intelligence unit ‘that was responsible for formulating plans to attack Sri Lankan army bases’. He could have been engaged in important intelligence work or merely in a lowly supporting role. The fact that he was later employed as a security guard for the UNHCR would indicate that: (i) he would have been thoroughly screened by the government and the UNHCR before he could take up the post; and (ii) he had not occupied a position of particular responsibility in the LTTE.”

(2)  After referring to the applicant’s family’s link to and role in LTTE, at paragraph 32 of the written decision, the adjudicator further said as follows:

“32. Many Tamils will have some sort of link with the LTTE, because fighting took place in large parts of the country, with locations changing hands frequently during the 27 years. Therefore most Tamils would have lived in parts of Sri Lanka occupied by the LTTE at some point during the quarter of a century conflict. In that time, the LTTE had set up schools, hospitals and other facilities for the population. It does not mean that every Tamil with a tenuous link to the LTTE must be at risk from the authorities. The Tamil returnee situation was considered by the Committee in the case of SS and SA v Netherlands. The Committee concluded that those claimants did not have a risk of being subjected to torture merely because they were Tamils, but that their Tamil ethnicity was only one of the risk factors to be taken into consideration.”

(3)   In my view, it is thus clear that the adjudicator had taken into account the applicant’s brother’s involvement with the LTTE in her risk assessment of whether the applicant himself would be personally subject to torture if returned to Sri Lanka.

(4)   Further, the applicant submits that, since the adjudicator accepted his account of events in the Questionnaire and interview, she had therefore accepted that the applicant’s brother is presently in hiding in Irag, fearing return because of his previous role in the LTTE’s intelligence unit.  In the circumstances, she had wrongfully failed to say whether she found that these matters would be on the records of the applicant held by the authorities and available to them at the airport for the purpose of the risk assessment[38]. In this respect, I accept Mr Shieh’s submission that this (ie, the finding as to whether the brother’s hiding in Irag would be on the applicant’s record held by the authorities) is irrelevant to the risk assessment in light of the applicant’s own case as stated in the Petition, where he referred only to his concern that, as the Sri Lanka government recorded his identification and fingerprints so that they could identify the applicant upon arrival at the airport.  This is particularly so given the adjudicator’s observation at paragraph 32 of the written decision quoted above.

(5)   It is also contended that the adjudicator failed to take into account that the police had pressured the applicant to bring his brother to them[39]. Although not expressly spelt out in the written decision, the adjudicator must have taken this into account, as this incident was mentioned at paragraph 9 and footnote 19 of the written decision, referring to, among others, the applicant’s Questionnaire Answer to questions 33 and 49[40]. It was stated in the answer that, “However, after my brother departed to go to stay with our sister, and during the next [day], the police harassed me to bring my brother to them, and for this reason I moved to live elsewhere.”  It must be noted that, in advancing his complaints under this ground, the applicant has himself relied on and assumed that the adjudicator had accepted everything he said in the Questionnaire and Interview.  The court in assessing his complaints is entitled to and should proceed on the same basis.

(6)   I am therefore satisfied that the adjudicator had taken these factors into account in her risk assessment.   

103.  Second, the applicant provided an account in the Questionnaire and interview of the applicant’s lawyer brother-in-law’s LTTE history and detention without charge by the Sri Lanka authorities in Colombo in 2009 and 2010.  The applicant now complains that (a) the adjudicator failed to record this and thus take this factor into account in her risk assessment; and (b) the adjudicator invented reasons without any basis as to why the applicant’s brother-in-law has been prevented from practising his profession in Colombo[41].

104.  I also reject this complaint:

(1)   As to (a), as mentioned above, it is the applicant’s own case that the adjudicator had accepted and thus taken note of all the applicant’s account of events in the Questionnaire and the interview.  Thus, it is open to assume that adjudicator had taken note of (though without having expressly summarised the same at paragraph 31 of the written decision) the allegation that the applicant’s lawyer brother-in-law had been detained without charge by the Sri Lanka authorities in Colombo.  When this is viewed under the context of the adjudicator’s observation at paragraph 32 of the written decision, I am not satisfied that it has been established that the adjudicator had failed to take this into account in her assessment as to the applicant’s risk of being personally subject to torture on his return to Sri Lanka.

(2)   As to (b), the relevant part of the adjudicator’s written decision is at paragraph 31[42], which says this:

“The Petitioner’s brother-in-law [B] was trained as a lawyer by the LTTE and he fought for the organization during the conflict. After the LTTE was defeated, and the government organized elections, the government appointed him a candidate to stand in the election. At the very least, this evidence indicates that the government must have conducted a thorough screening of [B], and found him to be of no threat to the government. The allegation that the government did not allow him to work as a lawyer does not imply anything sinister. A responsible government will seek to set minimum standards for professional status. For instance, here in Hong Kong, doctors trained in world-class establishments abroad must still qualify locally before they are allowed to practice here.”

(3)   Properly and objectively read, what the adjudicator was saying here is that, in light of the evidence that the government had appointed him to stand for election, the Sri Lankan government had found the brother-in-law to be of no threat to the government.  Viewed in this context (further said the adjudicator), the mere fact that the brother-in-law was not allowed to work as a lawyer by the government was neither here nor there and could not show that he was unfairly or wrongfully treated by the government, as there could be many reasons for that. The adjudicator then sought to give by way of an example a doctor’s failure to meet the minimum professional standard set by a government as a possible reason. She was not saying or finding as a matter of fact that this was the reason for the brother-in-law’s inability to continue to work as a lawyer. What the adjudicator was effectively saying is that the applicant had not shown with sufficient evidence that the brother-in-law’s inability to continue to work as a lawyer had anything to do the government’s persecution because of his LTTE link, in particular in light of the fact that he was appointed by the government to stand for an election. 

(4)   In my view, this conclusion is reasonably open to the adjudicator in light of (a) the applicant’s burden to prove his case, and (b) the applicant’s own evidence given in his interview regarding the brother-in-law’s inability to continue to work as a lawyer.  When asked the question of “what was he doing now”, the applicant’s answer is that: “He is farming.  He was a LTTE lawyer but now he is a farmer.  Sri Lankan government did not let him to [sic] work as a lawyer”[43].  It is important to note that it is not the applicant’s evidence or allegation that this was related to any government’s wrongdoing or persecution; and this must also be looked in the context that he had been assisted by legal representatives throughout his torture claim, and his lawyer was present with him at the interview. Without a positive case from the applicant on government’s wrongdoing, the adjudicator was entitled to observe that the mere fact that the brother-in-law was not allowed to work as a lawyer by the government (coupled with the fact that the government appointed him to stand for an election) was neither here nor there, and she was not required to “probe” further.

105.  Third, the adjudicator stated at paragraph 15 of the written decision that “no evidence has been adduced” of a consistent pattern of gross, flagrant or mass violations of human rights in Sri Lanka. The applicant now argues that this is contrary to the evidence and the established country guidance (“CG”) decisions, alternatively irrational[44]. In this respect, the applicant relies on the CG evidence attached to the Petition and the CG positions set out in the English cases of LP(LTTE Area, Tamils and Colombo, risk?) [2007] UKAIT 00076 and TK(Tamils – LP Updated) Sri Lanka CG [2009] UKAIT 00049.

106.  I am equally not persuaded by this argument:

(1) Paragraphs 14 and 15 of the written decision read as follows:

“14. It must be noted that situations of violence and poor human rights, even though widespread, will not in themselves be sufficient. Previous decisions of the Committee suggest that the personal facts and circumstances of the claimant are more important than the general human rights situation in the country of origin. For instance, in XYZ v Sweden the Committee stated that:

11.5 The Committee is aware of the serious situation of human rights in the Democratic Republic of the Congo, an inter alia, reflected by the report of the Special Rapporteur of the Commission on Human Rights. The Committee observes however, that UNHCR has not issued a recommendation to suspend the return of rejected asylum seekers to the Democratic Republic of the Congo in view of the current situation and accordingly that no objective impediments assist to the return of failed refugee claimants to the Democratic Republic of the Congo. The Committee recalls that, for the purpose of article 3 of the Convention, a foreseeable, real and personal risk must assist of being tortured in the country to which a person is returned. On the basis of the above considerations, the Committee is of the opinion that such risk has not been established.

15. No evidence has been adduced to say that there is a consistent pattern of gross, flagrant or mass violations of human rights in Sri Lanka. But whatever the general human rights situation there, the personal situation of the Petitioner must still be assessed as to the risk he would face if he is refouled to Sri Lanka.

…

37.  The facts as presented by the Petitioner read as a whole is insufficient to conclude that the Petitioner would be at personal, foreseeable, present and real risk of torture if refouled to Sri Lanka, therefore his petition is dismissed.”

(2)  Thus, in relation this part of the decision, the adjudicator’s reasons for refusing the applicant’s claim were that she was not satisfied (taking into account also other aspects of the evidence) that the applicant was personally at risk whatever the general human rights situation was. In other words, a consistent pattern of gross, flagrant or mass violations of human rights, even if assumed in his favour, did not assist the applicant, as he had not demonstrated that he personally was at risk of torture.  This is consistent with the Court of Appeal’s observation in TK v Jenkins at paragraph 29 that the existence of a consistent pattern of gross, flagrant or mass violations of human rights does not alone constitute a sufficient ground for determining that a person will be in danger of being subjected to torture and additional grounds must exist to show that the person will be personally at risk.

(3)  Further, independent from the above, I also accept Mr Shieh’s submissions that, it should be noted that even in cases such as TK and LP, the fact that a person is a “Tamil” does not mean that he faces risk of torture if returned to Sri Lanka, and an assessment of the individual circumstances of the applicant’s case is still required having regarded to the 12 “risk factors”identified in LP at paragraph 238, and repeated in TK at paragraph 123 and Nishanthan Thangareswarajah v The Secretary of State for the Home Department[45] at paragraph 9.  Furthermore, the CG cases make it clear that it is still open from time to time for the tribunal to receive evidence on whether conditions have improved or deteriorated and if refinement or modification of these risk factors are required.  It is therefore incorrect for the applicant to suggest those cases establish that there is a consistent pattern of gross flagrant or mass violation of human rights in Sri Lanka and refoulement to Sri Lanka in every case of any Tamil would be impermissible.  Moreover, the Asylum and Immigration Tribunal in LP and TK were focused on the risk of return of Tamils whose home area is in the north or in the east, and it was not concerned with conditions in the whole of Sri Lanka.  Indeed, in both cases the applicant was said to be safe if relocated to Colombo and possibly other parts outside Colombo.

(4)  In other words, these authorities also support that each case involving the consideration of whether a Tamil is to be returned to Sri Lanka would run of the risk of being personally subject to torture must still be assessed in the individual circumstance of that case, even though there was an established consistent pattern of gross flagrant or mass violation of human rights.  The adjudicator’s treatment of the factor of a consistent pattern of gross flagrant or mass violation of human rights in the present is in line with these decisions.

(5)  In the premises, I do not find this part of the adjudicator’s reasoning and conclusion contrary to the CG decisions or irrational as contended.

107.  Fourth, it is said[46] that in assessing the applicant’s personal risk of torture, the adjudicator made material adverse findings of facts at paragraphs 29 and 30 of the written decision without evidential basis, or which are contrary to the evidence and the CG in TK (Sri Lanka), and reached illogical conclusions as to his history including torture by the Sri Lankan police, his record in the hands of the Sri Lankan authorities and its availability on return.  It is further contended that she misrepresented the applicant’s scarring and misunderstood its possible significance, ignoring the approach to such records where the claimant is scarred, as prescribed in TK (Sri Lanka).  The applicant therefore further says the adjudicator failed to investigate these circumstances, as fairness required.

108.  I also reject this:

(1)     In taking into account the applicant’s scarring and his records kept by the Sri Lankan authorities as factors in the risk assessment, the adjudicator dealt with them at paragraphs 29 and 30 as follows:

“29. He has a scar on his scalp, and a scar from when he was slashed across the chest in 1998. The presence of scars is only another factor to be taken into consideration when assessing risk. It was said in a country guidance case that ‘the presence of scarring may promote interest in a young Tamil under investigation by the Sri Lankan authorities, we do not consider that, merely because a young Tamil has scars, he will automatically be ill-treated in detention. That case was decided during the conflict. The situation should be improved now that the civil war is over.

   30.  I turn now to the incident when he was detained by the police for 14 days in June 1990.  During that time he was slapped, whipped, punched and beaten with batons and fire hoses because they suspected him of ties to the LTTE.  This incident happened at a time when the Sri Lankan government were routinely rounding up young Tamil males in the capital.  The fact that the police were ‘attempting to extract a confession’ from the Petitioner (that he was a LTTE member) indicates that the government had no evidence to tie him to the LTTE.  The fingerprint record kept by the Sri Lankan government will only show that he had been questioned on suspicion in 1990.  Hundreds if not thousands of young Tamils had been questioned during the conflict, so the fingerprint record would not raise his profile.”

(2)     The adjudicator had therefore clearly taken these factors into account in assessing the risk as to whether the applicant would personally be subject to torture if returning to Sri Lanka.  This approach is not inconsistent with any legal principles set out in TK, supraor Thangareswarajah, supra, as contended by the applicant.  See also paragraph 107(3) and (4) above.

(3)     Properly analysed, the applicant’s complaint under this argument in substance is about the weight that the adjudicator had attached to these factors and the inferences drawn from them in her risk assessment.  Such a complaint is never a proper ground in support of judicial review unless Wednesbury unreasonable.  As said by the Court of Appeal in TK v Jenkins[47], this court in judicial review does not sit on appeal from the adjudicator’s decision and only plays a supervisory role.  

(4)     Reading paragraphs 29 and 30 of the written decision, and in the context of the evidence put before the adjudicator, I am of the view it is reasonably open to her in the way she had approached these factors.  In any event, I certainly do not find that the way she dealt with these two factors can be said to be Wednesbury unreasonable, even under a rigorous examination and anxious scrutiny in the enhanced sense as said by Lam J in TK v Jenkins[48] at paragraphs 29-29.

109.  Fifth, it is also said that on the critical issue of the applicant’s personal risk, the adjudicator’s decision was founded upon a “grotesquely” selective factual picture of the applicant and his “risk profile”; a picture only capable of being drawn by reliance upon the material omissions and misapprehension of facts in the evidence before her, the findings made without evidence and contrary to the evidence, matters not put to the applicant, a failure to investigate and a failure to find facts as contended above[49].

110.  This ground is in effect a catch-all complaint based on all the above contentions of error of facts, irrationality and illogicality.  Given that I have rejected all those underlying contentions, this ground must also naturally fail.

111.  Finally, the applicant submits that, in making the above complained findings, inferences and conclusions from the evidence or the applicant’s case, it is also procedurally unfair for the adjudicator not to offer him an oral hearing to clarify or respond to those potential findings and conclusions.

112.  I am unable to accept this submission as well. 

113.  The adjudicator came to the conclusion that, even accepting all the evidence put before her, the applicant has failed to prove his CAT claim that he was personally at risk.  She therefore dismissed the Petition.  As I have explained above, applying the high standards of fairness, it was still reasonably open to the adjudicator to make those findings, inferences or conclusions in light of (a) the applicant’s burden to prove his case, and (b) the applicant’s own evidence put before the adjudicator.  There is therefore no procedural unfairness in the circumstances of the present case when the adjudicator reached the decision to refuse the petition based on these findings, inferences and conclusions. 

C2.2.   Conclusion under the specific challenge

114.  For the above reasons, I also reject the judicial review based on the grounds in support of the specific challenge on individual circumstances.

D.   CONCLUSION

115.  All the grounds in support of this judicial review against the Adjudicator’s Refusal Decision, No Oral Hearing Decision, Adoption Decision and the Secretary’s Decision have failed.  I therefore dismiss the application.

E.   COSTS AND OTHER OBSERVATIONS

116.  There are two sets of costs I need to consider: one is the costs incurred in the applicant’s discovery application which was heard and dismissed by me on 14 December 2012, the other is the costs of the judicial review.

E1.  Costs of the discovery application

117.  Although the applicant took out a summons for discovery dated 19 June 2012 (parts of which were adjourned with liberty to restore by this court on 5 July 2012), he only sought to restore it for substantive hearing in late November 2012.  As a result, its substantive hearing was fixed on 14 December, just 6 days before the substantive hearing of the judicial review.

118.  The documents sought by the application (as set out in the skeleton in support) were as follows:

(1)     The attachments to the email from a Ms Linda Chan dated 30 August 2010 (“Class 1”) (first disclosed by the respondent on 10 September 2012).

(2)     Documents evidencing the “views of the adjudicators” and the “advice given by the trainers” allegedly taken into account in the amendments made following the March 2011 workshop (“Class 2”).

(3)     Documents evidencing the “comments” and/or “clearance” and/or “advice” given by the Department of Justice on various rounds of documentary reviews (“Class 3”); and

(4)     The submissions and list of authorities filed for the respondent by the Department of Justice in the Centeno case (“Class 4”).

119.  The applicant further sought a direction that the adjudicator do state in an affirmation what documents she reviewed, and had to hand when making the Adjudicator’s Refusal Decision and the Adjudicator’s No Oral Hearing Decision. 

120.  It is important to point out that the documents sought under Classes 1-3 are neither the documents covered under the adjourned parts of the discovery summons nor those which had been sought to be discovered by way of correspondence by the applicant between the adjournment of the summons and the applicant’s restoration of the same.  They are only set out in the skeleton in support of the application filed before the restored hearing. It was procedurally wrong and improper for the applicant to seek to “slip” those applications in under the guise of restoring the adjourned discovery summons.  This also amounted to a surprise application to the respondent[50].

121.  The discovery of Classes 1-3 documents were now said to arise from the Affirmations of Mr Woo and Ms Chen filed by the Secretary on 13 July 2012 and certain further discovery made thereafter. 

122.  The applicant submitted in his skeleton[51] that the discovery sought would help to “narrow” and “focus” the issues in the judicial review. 

123.  As I mentioned above, I dismissed the application at the hearing with brief reasons to follow in this judgment.  Below are my reasons.

124.  There is no dispute that the following principles apply in a discovery application in the context of judicial review:

(1)     The test for disclosure in judicial review is whether it appears to be necessary for disposing the critical issues fair and justly: Tweedy Parades Commission for Northern Ireland[52], at paragraph 3l, and Hong Kong White Book 2013, paragraph 24/3/3.

(2)     Discovery in judicial review proceeding is less common because of the duty of candour, but the court would be more, but not less, inclined to make the necessary orders where resolution of the critical issues requires that the court be provided with adequate disclosure in these proceedings: Chu Woan-Chyi v Director of Immigration[53], at paragraph 14(7) per Ma CJHC (as he then was).

125.  In my view, these documents are clearly unnecessary for the proper and fair disposal of this judicial review.  The issues arising from the judicial review have been set out above in this judgment.  It is obvious that none of the documents sought would be necessary for the proper and just determination of the critical issues or for “narrowing” the relevant issues:

(1)  In relation to the Class 4 documents, the applicant sought to discover from the Director the authorities and submissions made by the Director to Lam J in the Centeno case.  It was said that given Lam J’s previous decision in Lam Pik Ha, supra, it would be relevant and necessary to see why Lam J would seem to have reached an apparently different view on the necessity of oral hearing in Centeno.  As such, as the argument went, it would be relevant to see what submissions and authorities had been provided to Lam J.  This is clearly without merits.  One reads an authority in the way as it is explained by the judge in his judgment.  If the applicant wants to submit that Centeno was wrongly decided either because it is inconsistent with another earlier authority or of per incuriam or otherwise, he is fully entitled and able to do so without the discovery of documents as sought.

(2)  For the Classes 1-3 documents:

(a)  They relate to the challenge of the Brief Notes and the PDs. As analysed above in the main judgment, the critical issue under this is whether they were essentially the work products of the adjudicators, which in my view boils down to whether it was the adjudicators who gave their final approval and agreement to the reviewed and revised contents, after taking into account of the inputs from the Department of Justice and the Security Bureau.  Adequate materials have been disclosed in these proceedings for the determination as to whether that (i) the Security Bureau and the Department of Justice had provided inputs into the drafting, reviews and revision of the Brief Notes and the PDs, and (ii) the adjudicators’ involvement in the same exercise.  The further documents sought under these classes are at most peripheral if not entirely irrelevant to this question.

(b)  In the premises, given (i) the peripheral relevance, if any, of these documents, (ii) this discovery application was made at a very late stage and as a surprise, which was heard just a week before the substantive hearing of the judicial review with no good explanation for the delay[54], their discovery was clearly not necessary for the fair and just disposal of the relevant critical issue. 

(3)  The application requiring the adjudicator to file an affirmation was in my view also misconceived.  Whatever documents the adjudicator were taken to have seen and referred to in reaching the Adjudicator’s No Oral Hearing and Refusal Decision is a matter to be properly determined by reading objectively her written decision, unless the adjudicator has somehow put forward an otherwise positive case.  This is not the case here.  I also have doubt as to whether this specific application fell within a proper discovery application.  This is underlined by the fact there was no proper summons setting out this application.

126.  For the above reasons, I come to the conclusion that the discovery application is clearly without merits and was made very late.

127.  For this reasons, I would make an order nisi that costs of the discovery be to the Director on an indemnity basis. 

128.  Given my above view as to the propriety of the discovery application and the way that it was taken out, and given that the applicant is legally aided and thus public fund is involved, I also seriously consider whether I should disallow the applicant’s own costs to be taxed in accordance with legal aid taxation.  However, before I decide whether to do so, it is only right and fair for me to allow the applicant’s legal representatives to make submissions in relation to this.  I therefore direct that the applicant’s legal representatives shall proceed to fix a hearing before me with one hour reserved to deal with whether I should make such an order.  They should file their skeleton submissions 7 days before the hearing, and if they intend to rely on any affirmations for the hearing, those should also be filed at least 14 days before the hearing.

E2.  Costs of the judicial review

129.  As the applicant has failed in this application, there are no reasons why costs should not follow the event.  I further make an order nisi that costs be to the Secretary and the Director to be taxed if not agreed, with certificate for two counsel.  To avoid any doubts, there should only be one set of costs given that the Secretary and the Director are represented by one team of legal representatives.

130.  In relation to the applicant’s own costs, it should be taxed in accordance with legal aid taxation.

E3.    Other observations – failure to comply with the Practice Directions

131.  In accordance with Practice Direction SL3, paragraph 21, the applicant shall file a skeleton 7 clear days before the substantive hearing.  The applicant thus should file its skeleton by the latest on 12 December 2012.

132.  However, on 11 December 2012 (just a day before the time the applicant was required to file his skeleton), the applicant’s solicitors wrote to this court seeking an extension of time to file the skeleton on 17 December (ie, just 5 days before the substantive hearing), on the excuse that there was the hearing of the discovery application on 14 December.  This clearly could not be a good reason for not filing the skeleton on time in accordance with the Practice Direction.  In any event, the respondent also wrote to object the extension of time, as this would have left them very little time to respond by way of skeleton (which under the Practice Directions should be filed 5 clear days before the substantive hearing). 

133.  The court by its direction dated 12 December refused the application for extension of time.

134.  Then, in the evening of 12 December 2012, Mr Kat and Mr Parker faxed a skeleton to this court, which (excluding the chronology and dramatis personae) is only 4 pages long.  The skeleton contains nothing more than a collective reference to the some 200-odd paragraphs of the Form 86, and bare statements that the applicant should succeed in the judicial review on those grounds set out in the Form 86.  There are no developments of any arguments in the skeleton.  It provides no assistance one way or the other to the court (or the other side) other than effectively to ask the court to read the Form 86 itself and the documents in the hearing bundles.

135.  On the first day of hearing, I therefore asked Mr Kat, based on his skeleton, whether it was the case that he would rely on no further arguments other than the matters that had already been stated in the Form 86.  It was only at this point that Mr Kat produced to this court and to Mr Shieh SC on the other side an “Opening Note”, which is 34 pages long.  Even excluding the submissions relating to seeking leave to amend the Form 86, this Opening Note sets out the arguments in support of the judicial review over some 27 pages.

136.  In my view, this practice must receive the strongest criticism from this court. 

137.  Practice Directions are there to be, and should be so, complied with in substance.  The purpose of requiring the applicant to file a skeleton well before the substantive hearing under the Practice Directions is to, among others, enable the court and the other side to know in advance the substantive arguments to be relied on by the applicant, so as to save time and costs by having an efficient hearing, and also importantly to avoid any “surprise” tactics.

138.  What has been done by counsel in this case by filing the 4‑page skeleton is clearly nothing but a purported cosmetic compliance of the Practice Directions.  This is underlined by (a) the legal representatives’ reliance on the discovery application as an excuse for seeking file the skeleton late, which in my view should not in any way affect the substantive preparation of the skeleton in support of the judicial review, unless the applicant intended to use the discovery application to derail the substantive hearing of the judicial review, (b) the fact that by 11 December 2012 (the time when the applicant asked for an extension of time), the applicant counsel should have substantially (if not fully) completed their skeleton if they had all along (as they should have) intended to properly comply with the Practice Directions, and (c) the 34‑page “Opening Note” provided by counsel only on the first day of the hearing. 

139.  Mr Kat sought to explain to this court why he only provided a 4‑page skeleton initially on the basis that, since there was no pleading from respondent in judicial review, it is difficult for him to understand the other side’s grounds of opposition and arguments, and thus he would not be able to provide a fuller skeleton (such as the Opening Note) until after seeing the respondent’s skeleton. 

140.  I cannot accept this explanation:

(1)  The applicant carries the burden to prove and satisfy this court his grounds of the judicial review.  He must be prepared through counsel to develop the arguments in support of those grounds as set out in the Form 86.  There is no excuse not to do so in the skeleton, even allegedly not knowing the other side’s arguments of opposition (which I also do not accept for the following reasons). 

(2)  In any event, although without a pleading such as a “defence”, the applicant and his legal team must be able to discern at least some of the bases of the opposition raised by the other side from the affirmations filed in opposition.  This is not much different say from a plaintiff filing a skeleton in support of a summary judgment application, where the defendant has not filed a defence but just put in affirmations in opposition.  As a matter of fact, as far as the Opening Note is concerned, quite a large portion of the submissions made therein is elaboration and development of arguments premised on the applicant’s own case and the evidence filed by the Secretary and Director.  There is therefore simply no excuse not to file a proper skeleton on time in compliance of the Practice Directions.

(3)  In any event, this explanation is simply not the reason provided in the letter on 11 December asking for extension of time to file the skeleton. 

141.  I therefore have serious reservation as to the conduct of filing a cosmetic skeleton purportedly in compliance of the Practice Directions and then put in a full skeleton in the form of Opening Note on the first day of the hearing, in particular in the circumstances of this case as outlined above. 

142.  This practice must be denounced and discouraged.  Practitioners should be reminded that they should comply with the Practice Directions in substance.  Failure do so may also well lead to an adverse consequence on costs.