Nguyen Ngoc Toan and Another v. Chan Leung Wai Ching, A Senior Immigration Officer

Case No.CACV 51/1991

Court

Court of Appeal

Date19 Jun 1991

Judge—

Case Document

100%Judiciary

CACV000051/1991

IN THE COURT OF APPEAL

1991, No. 51
(Civil)

IN THE MATTER OF an application by NGUYEN NGOC TORN, a minor, by next friend, TRAM THI TAM

and

IN THE MATTER OF Order 53 and an application for Judicial Review

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BETWEEN

	NGUYEN NGOC TOAN by his next friend TRAN THI TAM	Applicant (Respondent)

	AND

	CHAN LEUNG WAI CHING, a Senior Immigration Officer	Respondent (Appellant)

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Coram: Sir Derek Cons, V.P., Kempster & Clough, JJ.A.

Date of hearing: 13 June 1991

Date of delivery of judgment: 19 June 1991

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JUDGMENT

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Sir Derek Cons, V.P. delivered the judgment of the court:

1. This is an appeal against the order of Bokhary, J. who, upon an application by way of judicial review, set aside the decision of Madam Chan Leung Wai Ching, a Senior Immigration Officer that Nguyen Ngoc Toan ("Toan"), a boy now of almost 16 years of age, did not fall within the definition of a refugee as laid down by the United Nations Convention of 1951, as amended by the Protocol of 1967, a definition in fact applied by the authorities in this jurisdiction, although the Convention and Protocol have no legal force.

2. Toan arrived unlawfully in Hong Kong on 5th July 1988. Ultimately the screening process to decide whether he qualified as a refugee was conducted in accordance with a Special Procedure for Vulnerable Persons in Hong Kong. These are persons who have "special difficulties in fully establishing the facts of the case or present special and compelling needs with regard to a durable solution".

3. Under the Special Procedure the potential refugee is interviewed by a case worker from the International Social Service (ISS) whose duty is to collect, by reference to an approved questionnaire, all the relevant information which will enable a Special Committee for Vulnerable Persons, the second stage of the process, to formulate a recommendation as to refugee status and advise on an appropriate durable solution. The report of the case worker is forwarded to the Committee who, in the light of that report and any further information provided to it, make a recommendation to the Director of Immigration. It is then up to the Director, through one of his officers, to whom all the papers and the recommendation of the Special Committee are forwarded, to make the decision.

4. It is well settled that it is no part of the ISS case worker's duty to express an opinion upon the merits of the claim. Initially it was the practice to delete any such opinion from the case worker's report. Now however, in deference to the desire of some case workers to forward their own opinion or recommendation to the Committee, such views are submitted in the form of an "addendum", which the Committee look upon as purely personal opinion, bearing in mind that the case workers are not qualified to make an assessment of the merits.

5. That is what happened in the present instance. Toan was interviewed on several occasions by a case worker, who spoke also with his brother and their cousin. To her final report she appended a sheet headed "Addendum: Interviewer's Opinion". That document was forwarded to the Special Committee, but was excluded from the papers which were subsequently passed on to Madam Chan.

6. The judge took the view that consideration of the addendum, had it been passed to Madam Chan, might have affected her decision. In that circumstance he held that Toan's case had not been fully and fairly presented to her, or in other words, that Toan had been denied natural justice in his quest for resettlement.

7. Mr. McNamara, who has presented the appeal ably and succinctly, takes no point that the addendum, being mostly concerned to press the case worker's own opinion on the merits, should not in any event have gone to the Senior Immigration Officer. He is content to accept that other parts of it would have been proper for her consideration. The main ground of his argument is that even had she seen it she would inevitably have come to the same conclusion, for the acceptable parts were already fully covered in the report. There was thus no possibility of a breach of natural justice: see George v. Secretary of State for the Environment and Another 1979 77 LGR 689, in particular the comment of Lord Denning, M.R. at 695:

"You should not find a breach of natural justice unless there has been substantial prejudice to the applicant as a result of the mistake or error which has been made."

and of Cummming-Bruce, L.J. at 698:

"On the substantive question arising on the cross-appeal as to whether there is shown to be any breach of natural justice, I do not for a moment accept that on the authorities there is any ground for the view that there is such a concept known to the law as a technical breach of natural justice. A breach of natural justice means that because of what has happened - something that has been done or has failed to be done - somebody has either actually suffered injustice or there is a real risk that somebody has suffered injustice."

8. To see if Mr McNamara can make good that submission it is necessary to compare the relevant part of the report with the addendum, bearing in mind that since no viva voce evidence was led below, this court is in as good a position" to make that comparison as was the judge below. We thus make no excuse for setting out these passages in full.

9. Section E: Additional Comments of the report reads:

"	a)	Toan is a very articulate child who seems quite mature for his age. He was calm during the interviews and only became agitated when he spoke about returning to Vietnam. The interpretator commented on the perceived level of honesty of the child. He believed Toan tried very hard to clearly differentiate between what he knew was fact and what he believed.
	b)	Toan does not know all the details of his families history and was not told many things by his father. He believes his father did this to protect the children. Due to these facts, his status may not be as obvious as that of an adult. What he is aware of is that his own life has been negatively affected by the fact his family was labelled the "bad element" in society and this has created many negatives for his family.
	c)	His father requests that he be afforded refugee status due to the discrimination his family has endured because of his employment with the Americans. His brother, Tien, believes Toan can not return without there being serious negative consequences for Toan and the family in Vietnam. Both Toan and Tien have a foster placement in the same home with a Vietnamese/American family in Long Island New York. Tien knows it will not be easy but if his brother is allowed to join him, Tien has said he will try his best because he wants to be with his brother anywhere.
	d)	There were no discrepancies between the boy's stories. At some points, they were not able to back up on anothers' reports of an incident but neither made an effort to fabricate rather, they stated honestly they did not know the information. Both the interviewer and the interpretators were impressed with the 'credibility' of Toan's interviews. In fact in reinterviewiny Toan, he noted a misinterpretation of the interviewer regarding the destruction of the hut. When first discussed the hut and the confiscation of his father's tools from an earlier incident with the police were discussed as one incident and the interviewer misinterpreted this to mean the but was where his father's tools were held. When the interviewer returned to clarify this, Toan corrected this misinterpretation and stated that his father's tools were not touched on that incident only the hut and everything inside the hut was destroyed. Toan knew this would not necessarily advantage his case in seeking refugee status but he stated he was very concerned that the report was accurate."

The addendum is in these words:

"The accumulation of the events that have occured to this boy & his family mean that this child is subjected to discrimination in the areas of educational, economic & social opportunities. He belongs to a particular social group. That group being those who worked for the Americans prior to 1975. Membership in this group has led to discrimination not encountered by other groups in Vietnam. He is treated differently due to his membership & he is not accorded his rights.

In the interviewer's & interpreters' opinion Toan speaks honestly & spontaneously. The truthfulness of the boy was commented on by both the interviewer & the interpretor.

The Special Committee asked how the family was able to earn a living if they were so frequently harassed:

It is the interviewer's opinion that possibly Toan's father's services as a mechanic were needed but because he was a former employee of the Americans he & his family were subjected to many forms of harassment which did not stop his father from earning a basic living but which restricted his income and according to Toan this made them all very fearful of the police & frightened about his own future if he returns to Vietnam."

10. The judge set out fully the reasons for his conclusion:

" With all that in mind, - (he had just set out three propositions of law which are unexceptionable) - let us look at what happened here. The interviewer and the interpreter - who were the only persons concerned in the decision making process who saw him - considered Toan to be honest and reliable. That view is contained both in the body of the report, which was before the decision maker, and in the addendum thereto, which was not before the decision maker.

But it seems to me that the omission of the addendum diminished the presentation of the boy's case not only quantitatively but also qualitatively. Apart from the fact that the use of language in the addendum is plainer and more graphic than the use of language in the body of the report, it is only in the addendum that it becomes clear that the interviewer's acceptance of the boy's account is based on the way in which he related it in addition to any favourable view she may have held of its inherent probability. In the addendum one finds, as we have seen, the person who interviewed the boy saying that he spoke "honestly and spontaneously". That goes to the manner as opposed merely to the matter of his answers; and there is no equivalent to it in the body of the report. For somebody dealing with the matter on paper to reject the interviewer's view of the inherent probabilities of the case is one thing. Rejecting the seeing and hearing interviewer's assessment of the credibility of the person interviewed is another matter altogether. It is to be noted that when the word 'credibility' is used in the body of the report, it is the credibility of the boy's 'interviews' that is mentioned. That is somewhat ambiguous. It could mean no more than that the boy's account was inherently worthy of credence. That is a view from which the decision maker may have been disposed to differ even if she would not have been prepared to reject the interviewer's view of the facts based on her assessment of the person relating them.

It seems to me that the qualitative diminution of the presentation of Toan's case resulting from the witholding of Ms Lane's addendum from Mrs Chan was a material diminution. The addendum might have made the difference between success and failure. It must be remembered that such favourable expressions of the accuracy of Toan's account as were in Ms Lane's report less the addendum thereto reached Mrs Chan not on their own but in the company of the Recommendation and Advice signed by Mr Cels. And in that document each and every one of Toan's complaints is prefaced by a formula such as 'the minor claimed'. Even if that formula does not involve a rejection of the truth of the complaints, it implies at the very least an unwillingness to accept that they are free of exaggeration. The formula is used again and again. The air of doubt generated thereby is at the very least significant. And if anything turned on it, I am prepared to say that it is all-pervasive."

11. It is clear that the part of the addendum upon which the judge relied as "qualitative'' improvement in the presentation of Toan's case is the second paragraph which focuses on his honesty. Mr Pritchard, who has appeared throughout for Toan, submits that this was indeed a new factor. He suggests that, despite the judge's apparent acceptance of it in the first paragraph of the passage we have just quoted, it was not reflected in the report, which on his analysis is no more than a report that the claims made by Toan are plausible claims, reserving the question of whether or not they are truthful.

12. With respect we are quite unable to accept that analysis. Taxing the four paragraphs of the report as a whole and in detail, we can only read them as strongly favourable to both the truth and accuracy of Toan's allegations.

13. We are also unable to read into the phraseology of the Special Committee's recommendation the unwillingness to accept that they were free from exaggeration which was found by the judge. Not only would we expect any doubts on this score to have been expressly revealed by the Committee, but they would not lie consistently with the Committee's view that "the discrimination/harassment (which the Committee must have accepted was) encountered by the family did not amount to a wellfounded fear of persecution".

14. In our view Mr McNamara has made good the submission that failure to submit the addendum to the Senior Immigration Officer in no way prejudiced Toan's application. We do not need then to consider the further argument that in fact she did not disbelieve him.

15. In the course of resisting the appeal Mr Pritchard put forward arguments which appear to suggest that the recommendation of the Special Committee was based upon a misunderstanding of the true facts, and that it was Wednesbury unreasonable. The latter point was taken below, but the judge having set aside the decision on the ground that he did, felt it unnecessary to go further. Neither point has been raised by a Respondent's Notice in these proceedings.

16. For these reasons we allow the appeal and order the decision of the Senior Immigration Officer dated 6th September 1990 to be reinstated.

(Sir Derek Cons)	(M.E.I. Kempster)	(P.G. Clough)
Vice President	Justice of Appeal	Justice of Appeal

Representation:

Rodney Pritchard (M/s Wong, Hui & Co) for the applicant

John MCNamara & Liu Yuen Ming, Crown Solicitor for the respondent/appellant