Nguyen Van Thuy v. Torture Claims Appeal Board

HCAL 1074/2018 and

HCAL 1078/2018

(Consolidated)

[2021] HKCFI 3914

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1074 of 2018

BETWEEN

AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1078 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicants in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review granted.

Observations for the Applicants:

1.The Applicants of these consolidated cases are all nationals of Vietnam, with the Applicant of HCAL 1074/2018, Nguyen Van Thuy (“NVT”), and the 1^st Applicant of HCAL 1078/2018, Le Thi Ngoan (“LTN”), being husband and wife, while the 2^nd Applicant of the second application, Nguyen Huyen Linh (“NHL”) is their then teenaged daughter, who separately in 2015 entered Hong Kong illegally and subsequently surrendered to the Immigration Department when they jointly raised a non-refoulement claim on the basis that if they returned to Vietnam they would be harmed or killed by the Vietnamese government and authorities for political reasons and/or persecution/discrimination against them as deported returnees after having fled their country on previous occasions.  They were subsequently released on recognizance pending the joint determination of their claim.

2.NVT was born in 1962 in An Duong, Le Chan District, Haiphong City, then North Vietnam where his biological father used to serve in the French Army during the French colonial period, and after the French colonists were defeated in the Indochina War in 1954 and left, Vietnam was then divided into North Vietnam under the Communist regime and the US-backed South Vietnam which soon led to hostile military confrontations between them and eventually the Vietnam War, during which his father was imprisoned by the North Vietnam Communist regime from 1954 to 1960 for treason.

3.Upon release from prison in 1960, his father married his mother who then gave birth to NVT in 1962, and as his father was still fearful of further persecutions by the North Vietnamese government and therefore made plans to escape to South Vietnam, but before he was able to do so, he was arrested by the authorities and sentenced to prison again where he later died in 1967.

4.Due to his father’s arrest, his mother suffered from severe depressions and later died from mental illness in 1965, and as a result NVT was placed in the care of his father’s good friend and wife who later adopted him and gave him the surname of his adoptive father to protect his true identity from the authorities.

5.At the end of the Vietnam War in 1975, Vietnam was unified under the Communist regime, and in 1980 after leaving school, NVT joined his country’s Navy, but one day in December 1981 he was involved in a fire accident while on duty for which he was subsequently charged by the Navy for dereliction of duty, and during investigation his true identity and relationship with his biological father were exposed, and he was branded as the son of a traitor, for which he was detained by the authorities for interrogation for 5 months, during which he was tortured almost every day, and although he was later found by a court of not liable for the fire accident, he was sent to a detention camp in the northern part of Vietnam where he was kept from 1981 to 1985.

6.Upon his release in 1985, NVT returned to his home district in Le Chan District of Hai Phong City, but was still under constant police surveillance and was followed everywhere he went. Eventually he met and married LTN and raised a family of 3 children, but could only make his living as a hawker selling vegetables in the streets, as he was unable to apply for any job in the government or to enroll his children in government schools, of which he suspected of being discriminated by the authorities due to his background and his connection with his biological father.

7.One day in 1990 NVT ran into a man called QUANG whom he had befriended at the detention camp and who had been deported to China due to his Chinese origin but had returned to look for his family in Vietnam, and as QUANG had nowhere to stay, NVT allowed him to stay in his home.

8.One day in 1991, QUANG failed to return home, and later 3 policemen came to search NVT’s home as QUANG had been arrested for spying for China, and that NVT was to be taken for interrogation for suspicion of assisting QUANG in spying, but NVT managed to escape hide in a relative’s home, while his wife and children were then taken in by the police for questioning. Upon their subsequent release, LTN secretly met up with NVT and together they departed Vietnam on 9 June 1991 for Hong Kong where they made applications as refugees which were however refused and they were then repatriated to Vietnam in 1997.

9.Upon their return to their home district, they discovered that their home had been confiscated by the authorities, leaving behind only a piece of land under the name of LTN’s brother, and so they could only rent a small room in Hai Phong City, and as they were known as returnees after having earlier fled their country, they were regarded as having betrayed their country, and were as a result unable to find any employment since no one was willing to hire them, and so between 1998 and 2000 NVT again departed twice for Hong Kong but which also ended up with arrest and repatriation back to Vietnam.

10.Upon his eventual return to his family in his home district in 2001, NVT resumed his former trade selling fruits and vegetables in the street together with LTN, and in 2010 they managed to build a small house for the family on the land of LTN’s brother, and then in 2014 they opened an internet bar in front of their house, but their subsequent application for the necessary license was refused by the authorities which NVT suspected was the result of discrimination against him over his background, and soon the police would come to harass their business, and eventually closed down their internet bar and arrested both of them and detained them for half a day during which they were beaten in the police station before being released without charge.     

11.However, thereafter some unknown men came to their home to threaten them, and fearing of further threats and persecutions by the authorities, the couple in April 2015 departed Vietnam for China, and from there they again sneaked into Hong Kong and raised their non-refoulement claim for protection, and later they arranged for their youngest daughter NHL to also sneak into Hong Kong and raised the same non-refoulement claim for her, for which they jointly completed a Non-refoulement Claim Form (“NCF”) on 26 October 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

12.By a Notice of Decision dated 9 December 2016 the Director of Immigration (“Director”) rejected their claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

13.In his decision the Director took into account of all the relevant circumstances of their claim and assessed the level of risk of harm from the Vietnamese authorities upon their return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any persecution by the Vietnamese government due to NVT’s relationship with his biological father or for any political reasons as NVT had never been arrested by the authorities upon his several repatriations back to Vietnam in the past, that reliable and objective Country of Origin Information (“COI”) show that reforms have been on-going in Vietnam to improve and protect the rights of its citizens from abuses by the authorities, and that reasonable internal relocation alternatives are available in Vietnam with a large population of 93 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for the couple as able-bodied adults with working experience to move with their daughter to other part of Vietnam away from their home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for them to be located.

14.On 22 December 2016 they lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 19 March 2018 before the Board during which NVT gave evidence and answered questions raised of their claim by the Adjudicator for the Board. On 25 May 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

15.In its decision the Board found NVT’s explanation of the in-depth investigation by the Vietnamese authorities into his background over the fire accident which led to his true identity and relationship with his biological father being exposed disingenuous on the core aspect of his case, that his alleged subsequent detention and assaults by the police and at the detention camp incredible, and that his escape from the 3 police officers who came to investigate QUANG for spying improbable, and concluded that he had not been telling the truth and rejected his claim for non-refoulement protection under all the applicable grounds.    

16.On 12 June 2018 NVT filed a Form 86 for himself only for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given either in his Form or his supporting affirmation in which he merely repeated his claim as before, while LTN and NHL on the same day of 12 June 2018 also filed their Form 86 jointly to challenge the same Board’s decision, but similarly disclosed no proper grounds for their intended challenge, and on 2 February 2021 with their consent I made an order consolidating their two applications for determination.

17.Whilst the Applicants did not put forward any proper ground in their Forms for their intended applications, given the serious implications of the issues at hand and consequences, the Court will adopt an enhanced standard in scrutinizing the decision of the Board to ensure that high standards of fairness had been applied in its determination of their claims.

18.As noted above, the Board dismissed the appeals of all 3 Applicants essentially on its adverse findings on NVT’s credibility as to his claim of risk of harm from the Vietnamese authorities upon which the claims of his wife and daughter were based, and for which the Adjudicator gave the following reasons in the decision, starting with his approach towards the assessments of the claims:

“24. The non-refoulement claim of each Claimant should in principle be considered separately in the sense that failure or success of one did not automatically mean the same outcome for the others. Claimant 2 and Claimant 3, however, rely on the case of Claimant 1. Therefore, rejection of Claimant 1’s case would be fatal to them. Acceptance of Claimant 1’s case, however, did not mean automatic success for Claimant 1 or for any of the other Claimants. Claimant 1’s case might not be sufficient to show a real risk of serious harm. Even if there was such risk for Claimant 1, the risk might not be applicable to Claimant 2 or Claimant 3.”

19.The Adjudicator then proceeded to find what it considered to be a pivotal feature of NVT’s case, and how an answer from him in relation thereto had impacted on the assessment of his general credibility:

“25. A) A pivotal feature of the case of Claimant 1 was that the Navy conducted an in-depth investigation into his background and his true identity was revealed. Why did the Navy conduct such an investigation? Claimant 1 explained that when he first joined, there was an ‘ordinary’ check of his background only. However, if something serious happened (like in this case the destruction of the electricity generator), then a more thorough investigation would be conducted because it was war time.

B) I asked what war he meant. Claimant 1 said it was the war between North and South Vietnam. Madam Interpreter immediately interrupted by telling Claimant 1 that Vietnam was already unified by then (see paragraph 13 above. Indeed, the war between North and South Vietnam ended in 1975 with victory for the North. In order words, “war between North and South Vietnam” had been history for some six years before any in-depth investigation by the Navy as alleged by Claimant 1. There is no need to cite any authority for the ending of the North-South conflict. Any decent history book dealing with that war will readily inform. Indeed, one can just Google it). I think Madam Interpreter was so shocked by this explanation of Claimant 1 that the instinctively (and indiscreetly) interrupted. It happened so fast and unexpected that I was not able to stop Madam Interpreter.

C) Claimant 1 than changed his evidence. He said it was maybe because of war with Mainland China or war before Claimant 1 was born. As far as the war with mainland China was concerned, I thought he meant the month-long war when Mainland Chinese forces invaded Vietnam in retaliation for Vietnamese intervention in Cambodia. This war began in February 1979 and lasted for about a month (see, e.g., https//www.warhistoryonline.com/instant-articles/red-against-red-invasion-vietnam.html and https://en.wikipedia.org/wiki/Sino-VietnamWar). However, Claimant 1 added that it was not any major war but only skirmishes now and then. He said it was most probably this conflict with Mainland China. I can accept that after the month-long war, there were occasional skirmishes between Vietnamese and Mainland Chinese forces and for maybe a decade (see the 2 web pages I just referred to).

D) Claimant 1’s explanation of the further Navy investigation being linked to the North-South Vietnam War flabbergasted me. If he was really in the Vietnamese Armed Force (Navy), he could not have gotten it wrong. I regard his reference to skirmishes between Vietnam and mainland China a desperate attempt to cover up his lie as corrected by madam Interpreter. His reference to “war before he was born” is absurd. For one thing, if the in-depth investigation was because of any war before Claimant 1 was born, then it would have been conducted when he first joined the Armed Forces. There would not have simply been an “ordinary” check at all.

E) I found Claimant 1 disingenuous on this linchpin aspect of his case.”     

20.In addition to finding NVT disingenuous on the vital aspect of his case, the Adjudicator also found his following evidence incredible or improbable:

“26. I refer to paragraph 18 above. It was clear that, on Claimant 1’s assertions, the 3 officers came specifically to arrest and take him away. The suspected offence was a serious one, i.e., spying. One would have expected the officers to be on full alert. It seems to me improbable for Claimant 1 to be guarded by one officer only when he was changing. What were the other 2 officers doing? Guarding the rest of Claimant 1’s family? There was nothing to indicate such need. What else was the one officer (allegedly guarding Claimant 1) paying attention to when Claimant 1 changed? Was Claimant 1’s sense of self-preservation such that he escaped on his own without regard to what might happen to the rest of his family at the hands of the officers? I find Claimant 1’s version here improbable.

27.  If Claimant 1 escaped from arrest for spying and had assaulted a police officer, one would have expected him to be on the nation-wide wanted list. I refer to paragraphs 19 to 22 above. Claimant 1 was apparently not identified as a fugitive after repatriation from Hong Kong around 1997, 1998 and 2001. Surely his identity must have been checked by Vietnamese authorities on his return and before release. Did no one discover that he was a wanted person? Claimant 1 approached Labour Department for job opportunities. Did no one there know he was wanted? The police officers who harassed Claimant 1 at the Bar were from the area where Claimant 1 allegedly eluded arrest for helping QUANG to spy. They seemed completely oblivious of Claimant 1’s fugitive status. I find all this too incredible.”

21.The Adjudicator then arrived at the following conclusion regarding the claims of all three Applicants:

“28. I do not accept Claimant 1 had been telling the truth. I reject his case. In particular, I reject the following allegations relating to core matters:

a) That there had been in-depth investigation into his background by the Navy and he had been branded a spy;

b) That he had been unjustifiably detained and assaulted/ maltreated by the police and at the Detention Camp; and

c) That police wanted to arrest him for helping QUANG to spy.

29. The Claims must fail. Even if I were to accept Claimant 1’s case, I find that a) his fear of being detained and tortured on mere suspicion of assisting QUANG (to spy) because of his experience in 1980 is unfounded. It is speculative to say that what happened to him around 1980 would happen again some 10 years later (when he was suspected of assisting QUANG). Furthermore, we are now in 2018. It is speculative to say that what happened to the Claimant around 1980 will be repeated now (when I use the words “would” and “will” here, I have not overlooked the low standard of proof that is required) and b) there is nothing to indicate any real risk of serious personal harm to Claimant 2 or Claimant 3.

30. There is no need to dwell into such matters as reasonable home state protection and internal relocation alternatives.

31. Apart from Claimant 1’s evidence, there is nothing (e.g., country of origin information) to indicate there should be non-refoulement for any Claimant.”

22.It seems clear to me that the Adjudicator rejected the Applicants’ claims essentially on its adverse findings against NVT’s credibility primarily on his evidence in relation to the above so-called core matters, but before proceeding to consider whether there is any error of law or facts in those findings, or whether it is irrational or Wednesbury unreasonable for the Adjudicator to arrive at his conclusion based on those findings, it would be relevant to first refer the general principles and methods which the Adjudicator as the decision-maker was to apply in the assessment and determination of the Applicants’ non-refoulement claims, and in particularly as to the issue of credibility.   

23.Those principles and methods for establishing and assessing a claim are well established, with the burden of proof lies on an applicant to establish his claim, and then for the adjudicator charged with determining the status to assess the validity of the evidence and the credibility of the applicant, as set out in the UNHCR’s Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, reissued in December 2011 (“UNHCR Handbook”), in which it emphasizes the facts that in most cases a person fleeing from persecution will have arrived with the barest necessities sometimes even without personal documents, and hence while the burden of proof rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the adjudicator, and that in some cases it may be for the adjudicator to use all the means at his disposal to produce the necessary evidence in support of the application, and if the applicant’s account appears credible, and unless there are good reasons to the contrary, he should be given the benefit of doubt ([195] - [196]), of which the Handbook further elaborates as follows:

“197. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant.

198. A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case.

199. While an initial interview should normally suffice to bring an applicant’s story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner’s responsibility to evaluate such statements in the light of all the circumstances of the case.

…

201. Very frequently the fact-finding process will not be complete until a wide range of circumstances has been ascertained. Taking isolated incidents out of context may be misleading. The cumulative effect of the applicant’s experience must be taken into account. Where no single incident stands out above the others, sometimes a small incident may be “the last straw”; and although no single incident may be sufficient, all the incidents related by the applicant taken together, could make his fear “well-founded” (see paragraph 53 above).

202. Since the examiner’s conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgment should not, of course, be influenced by the personal consideration that the applicant may be an “undeserving case”.”

24.The UNHCR Handbook explains the necessity of giving the applicant the benefit of the doubt in appropriate situations as follow:

“203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized, it is therefore frequently necessary to give the applicant the benefit of the doubt.

204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.”  

25.These guidance of the UNHCR Handbook were adopted by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 1867 when Li CJ stated at para 21:

“ … The Handbook states that, while the applicant has the burden of proof, the duty to ascertain and evaluate all relevant facts is shared between the applicant and examiner. In appropriate cases, such as where statements are not susceptible of proof, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt: see paras. 195 and 196 of the Handbook.”

26.It is also critical to note that the two-tier screening process under the Unified Screening Mechanism (“USM”) of non-refoulement claims is not an adversarial process, nor is it the role of the determining authority to contest an application for international protection or strive with zeal to identify indicators of lack of credibility, but rather it is its duty to assess the relevant elements of the application in cooperation with the applicant to ensure that the application is examined and decision taken objectively and impartially, as emphasized by the UNHCR Report “Beyond Proof – Credibility Assessment in EU Asylum Systems”, May 2013 (“UNHCR Report”) as to the importance of Article 8(2)(a) of the Asylum Procedures Directive (“APD”) at p. 37:

“Article 8(2)(a) of APD requires Member States to ensure that applications for international protection are examined and decisions taken objectively and impartially. The requirement of objectivity and impartiality applies throughout the procedure, including the process of both gathering and assessing evidence, and it applies to the examination of all applications regardless of the applicant’s identity, background or circumstances.”

27.The UNHCR Report also notes that the challenges of the credibility assessment in the asylum procedure on decision-making are compounded by the geographical and cultural distance between the country of origin in which the alleged facts happened and the country in which the application for international protection is examined, the amount of time that has elapsed between these facts and screening of the case, the psychology of the applicant and the interactions between him and the decision-maker are all relevant to the credibility assessment, as it explained at p 31:

“The psychology of the applicant, the interviewer and, if different, the decision-maker, as well as the interactions between these persons are all relevant to the credibility assessment. A wide-range of factors influence these psychological processes, including age, gender, sexual orientation and/or gender identity, culture, social status, education, state of health, and mind-set at the time of the interaction. The credibility assessment will also reflect assumptions about behavior, values, attitudes, perceptions of and responses to risk, and about how a truthful account should be presented. When providing statements, applicants are required to recall relevant past and present facts to substantiate their application. The reliance by interviewers and decision-makers on the human memory must also be informed by evidence from neurobiology, and expectations of what can be recalled and how this is done, should be realistic.

Interviewers and decision-makers, therefore, in addition to knowledge of the relevant law and of the country of origin, need to be aware of and to understand these factors that impact on the credibility assessment and to be informed by the substantial body of empirical scientific evidence that exists in these fields.

…

The evidential challenges inherent in the process of fact-finding are even more acute and formidable in the examination of applications for international protection. There may be no third party evidence from, for example, witnesses, family, acquaintances, and members of the applicant’s community, or there may be doubts about the reliability of the existing evidence.”      

28.As pointed out in the UNHCR Report, multi-lingual and cross-cultural communication in asylum procedure increases scope for misunderstandings and errors, and though interpreters may help to overcome the linguistic barriers, decision-makers’ lack of familiarity with the cultural backgrounds of applicants as well as social modes or gender norms of their societies or origin may still pose a challenge to assessment of credibility, as Lord Justice Keene of the UK Court of Appeal stressed in the case of Y  v  Secretary of State for the Home Department [2006] EWCA Civ 1223, 26 July 2006 at para 25:

“An English judge may have, or think that he has, a shrewd idea of how a Lloyds broker or a Bristol wholesaler or a Norfolk farmer, might react in some situation which is canvassed in the course of a case but he may, and I think should, feel very much more uncertain about the reactions of a Nigerian merchant, or an Indian ships’ engineer, or a Yugoslav banker. Or even, to take a more homely example, a Sikh shopkeeper trading in Bradford. No judge worth his salt could possibly assume that men of different nationalities, educations, trades, experiences, creeds and temperaments would act as he might think he would have done or even – which may be quite different – in accordance with his concept of what a reasonable man would have done.”

29.Furthermore, given the considerable difficulties an applicant normally faces in gathering evidence to support his claim, the principle of the benefit of the doubt should often be applied in appropriate cases, as noted above in the UNHCR Handbook which recognizes that notwithstanding the efforts of an applicant, and indeed also of the determining authority, to gather evidence pertaining to the material facts asserted by the applicant, there may still be some doubt regarding some of those facts, in which case the need for the principle is reinforced by recognition of the fact that an applicant’s life and/or integrity may be put at grave risk if non-refoulement protection is wrongfully declined, as it was emphasized by the European Court of Human Rights in R.C. v Sweden, no. 41827/07 (Judgment), ECtHR, 9 March 2020 at para 50:

“The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statement and the documents submitted in support thereof.”

30.The application of the principle of the benefit of the doubt therefore allows the decision-maker to reach a clear conclusion to accept an asserted material fact as credible even though there may be no other evidence to support the fact, which is reflected in the UK policy guidance, Asylum Instructions: Considering Asylum Claims and Assessing Credibility, February 2012 at para 4.3.4:

“[A] decision must be made whether to give the applicant the benefit of the doubt on each uncertain or unsubstantiated fact – this means that the decision-maker must come to a clear finding as to whether the fact can be accepted or rejected. It is not acceptable to come to a final conclusion that a claimed fact (about which you are uncertain) ‘may have happened’.”

31.In other words, having carefully assessed the credibility of the material facts with regard to all the relevant evidence obtained through the lens of the credibility indicators, as appropriate in the light of the applicant’s individual and contextual circumstances, and duly taking into account the reasonableness of any explanation provided by the applicant with regard to potentially adverse credibility findings, the decision-maker must determine whether to accept a material fact as credible or not, and if there is still some doubt over the credibility of some asserted facts, the decision-maker should consider whether to apply the principle of the benefit of the doubt, as the UNHCR Report stated at p 50:

“If, following such assessment, there is nevertheless an element of doubt in the mind of the decision-maker as regards the credibility of some asserted relevant facts, and there is no other evidence to support that fact, the decision-maker should consider whether it is appropriate, in all the circumstances, to apply the principle of the benefit of the doubt. The application of the principle of the benefit of the doubt, as explained in the UNHCR Handbook, allows the decision-maker to accept an asserted material fact as credible even though there may be no evidence other than the applicant’s statements to support the fact, and thereby, reach a clear and unambiguous conclusion regarding the asserted facts of the application.”

32.Above all, high standards of fairness must be observed by the decision-maker in all aspects of the assessment and determination of the claim, as stated by Li CJ in Prabakar:

“43. The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question: R v Home Secretary, ex p Doody [1994] 1 AC 531 at p.560D-G.

44. Here, the context is the exercise of the power to deport. The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.”     

33.In the Applicants’ case, as noted above, it appears that the Adjudicator rejected the credibility of their claim primarily based on one answer from NVT to a question over what the Adjudicator considered to be the “pivotal feature” or “core matters” of their case: Why did the Navy conduct an in-depth investigation into NVT’s background which revealed his true identity?  A question which in my view could not have been answered by NVT in the first place, being the target of investigation by the authorities, and who could not have known the answer unless he had been told by the authorities, but in the absence of any evidence that it was the case, and I do not see why he would have been so informed, then any answer from him to the Adjudicator would just be his own speculation and is therefore meaningless.     

34.Furthermore, given NVT’s background and true identity, of which the Adjudicator did not appear to have taken any real issue, I do not find anything unusual about his answer, speculative or otherwise, as it was clearly his case that it was the war and military conflicts between the North and South Vietnam in the 1960s that led to the incarceration of his biological father and the concealment of his own identity by his adoptive parents which later became the subject of investigation by the Navy, and I fail to see how such an answer from NVT, perhaps too brief or simplistic under the circumstances, should cause the Adjudicator to feel flabbergasted or to find him “disingenuous on the linchpin of his case” in the determination and assessment of his claim.

35.Or for that matter, for the Adjudicator to make any reference of the interpreter’s reactions to NVT’s answer, which were in my view entirely inappropriate as a conduct of an interpreter, and which were obviously without any probative value in the Board’s evaluation of NVT’s credibility, but which the Adjudicator somehow saw fit to include in the decision as if to reinforce his own reaction to NVT’s answer, and which also risks giving rise to the impression of bias on the part of the Adjudicator against NVT in the screening process of the Applicants’ claim.

36.As for the Adjudicator’s finding of NVT’s alleged escape from the 3 police officers for assisting QUANG to spy as improbable, the Adjudicator appeared to have made various assumptions about the police and the legal system of Vietnam in the 1990s based on his own concept of what should have happened rather than on proper evidence and relevant COI, as it was pointed out in the UNHCR Report above, multi-lingual and cross-cultural communication in asylum procedure increases scope for misunderstandings and errors, and though interpreters may help to overcome the linguistic barriers, decision-makers’ lack of familiarity with the cultural backgrounds of applicants as well as social norms of their societies of origin, and the linguistic barriers may remain a challenge, and in addition to knowledge of the relevant law and system of the country of origin, decision-makers need to be aware of and to understand a wide –range of factors influencing the psychological processes interacting between the applicant and the decision-maker, as Lord Justice Keene of the UK Court of Appeal has stressed in Y v Secretary of State for the Home Department [2006] EWCA Civ 1223, 26 July 2006 at para 25:

“An English judge may have, or think that he has, shrewd idea of how a Lloyds Broker or a Bristol wholesaler or a Norfolk farmer, might react in some situation which is canvassed in the course of a case but he may, and I think should, feel very much uncertain about the reaction of a Nigerian merchant, or an Indian ships’ engineer, or a Yugoslav banker. Or even, to take a more homely example, a Sikh shopkeeper trading in Bradford. No judge worth his salt could possibly assume that men of different nationalities, educations, trades, experiences, creeds and temperaments would act as he might think he would have done or even –which may be quite different – in accordance with his concept of what a reasonable man would have done.”

37.The same can be said about the Adjudicator’s finding it incredible that NVT would not have been placed in a nation-wide wanted list after his alleged escape from the police or had not been identified as a fugitive all these years in Vietnam if indeed he had been accused for helping QUANG to spy without any relevant COI as to the then situation in Vietnam some 28 years ago.

38.Given the apparent coherent details as to the relevant facts and the timespan of the Applicants’ claims as provided by NVT both to the Director and the Board, it also seems to me irrational or Wednesbury unreasonable of the Adjudicator not to apply the principle of the benefit of the doubt in his assessment of the credibility of NVT’s evidence, but instead rejecting the claims of all three of the Applicants on the basis of some speculative and meaningless answers from NVT or of some assumptions not substantiated by relevant COI.

39.Furthermore, in his determination of the Applicants’ claim, the Adjudicator did not appear to have considered at all their claim of fear of discrimination and persecution by the Vietnamese authorities as they had been stigmatized as traitors or returnees because of their flights from Vietnam, notwithstanding that it had been clearly set out in their NCF as well as in NVT’s evidence given at the appeal hearing before the Board as recorded in its decision as follows:

“19. Around 1991, Claimant 1. Claimant 2 and two of their children (apart from Claimant 3) came to Hong Kong. Their applications for non-refoulement were rejected. Claimant 2 and one daughter voluntarily returned to Vietnam around 1994 whereas Claimant 1 and the son returned around 1997. Before Claimant 1’s return, he was informed by Claimant 2 that life in Vietnam was hard and that the Vietnamese government was not providing them appropriate assistance or support.

20. A) Around 1997, Claimant 1, Claimant 2 and their children returned to the area where they had been living. They found their house had been confiscated by the government. They could only live in a small rented room relying on Claimant2’s savings and some voluntary repatriation reward. Though Claimant 1 and Claimant 2 had a small piece of land (“the land”) in the area, they had no money to build on it.

B) Claimant 1, Claimant 2 and their family were stigmatized as traitors because of their flight from Vietnam. They suffered discrimination. In 1997, Claimant 1 went to the Labour Department looking for job opportunities. The Department told Claimant 1 that they would never admit his applications because he might just flee again. Claimant 1 thus could not find a proper job and life became harder.

21. Due to difficulties in making a living, Claimant 1 came to Hong Kong again around 1998 and 2001 but was repatriated shortly thereafter on each occasion.

21. Claimant 1 and Claimant 2 managed to build a small house on the Land. They relied on savings but mainly relied on loans from relatives.

22. A) Around 2014, Claimant 1 and Claimant 2 opened an internet bar (“the Bar”) at the front of the Land with savings from selling vegetables and fruits in the street.

B) Since the opening of the Bar, groups of uniformed police officers had been going there about once a month. The officers said the Bar was illegal and that they did not have to explain to Claimant 1 why that was so. On occasion the officers even vandalized the Bar. Business worsened. Claimant 1 believed the officers knew the Land was valuable and wanted it for their own benefit. Claimant 1 so believed because the officers had once indicated they wanted to buy the Land but offered a low price. Claimant 1 refused the offer. After this, there was disruption/harassment by the police.

C) Around March/April 2015, police officers came to the Bar nearly every day. Each time they committed vandalism and told Claimant 1’s family to leave the Land. They said Claimant 1 could not live there because he had returned from Hong Kong in 1997. On a number of occasions, a group of unknown men entered the house immediately after departure of the police. They echoed the demands of the police for sale of the Land at a low price. They punched and kicked Claimant 1 but did not seriously injure him. Claimant 1 believed they were triad members related to the police and wanted to harass Claimant 1 so that he would leave the land. On one occasion, Claimant 1 and Claimant 2 were detained at a police station for half a day. Claimant 1 was told that the land was not his. After release, Claimant 1 and Claimant 2 found the land blocked off.

23. Around April 2015, Claimant 1 and Claimant 2 found life in Vietnam unbearable. They fled to Hong Kong. Claimant 3 arrived here later that same year,”     

40.It is therefore clear that the Adjudicator was fully aware of the Applicants’ claim of risk of persecution and discrimination by the Vietnamese authorities due to their previous flights from the country, with their entries into Hong Kong also accurately recorded by the Immigration Department and not disputed by the Adjudicator at the appeal hearing, yet it does not appear in the Board’s decision that the Adjudicator had considered and assessed this claim of the Applicants, or that he had not given any or adequate explanations or reasons why this claim had been rejected.      

41.In the premises, and for the reasons given, I am of the view that the Applicants’ intended application for judicial review of the Board’s decision is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, and accordingly I grant leave for the Applicants to do so on the bases as noted above that the Board (i) erred in law in assessing the credibility of the Applicants’ claim; and (ii) failed to consider adequately or at all the Applicants’ claim of risk of persecutions due to NVT’s background and their previous flights from Vietnam.

42.It follows that in accordance with Order 53 rule 5 of the Rules of the High Court, Cap 4A, the Applicants shall file an originating summons on those bases within 14 days of this decision, and serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 30^th day of December 2021

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1