Bui Van Ao v. The Refugee Status Review Board

HCAL000008A/1997

1997, No. AL8

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Hon Yam, J. in Court

Date of hearing: 12 June 1997

Date of delivery of judgment: 11 July 1997

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J U D G M E N T

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1. This is an application by the applicant for judicial review of the Refugee Status Review Board's decision dated 27^th August 1996 ("the Board's Decision"). By that decision the Board decided that :

(1) the applicant is not a refugee within the meaning of the provision of article 1A(2) of the United Nation Convention of 1951 and the Protocol of 1967;

(2) the applicant should continue to be detained by virture of s.13D(1) of the Immigration Ordinance pending his removal from Hong Kong.

2. The applicant was born on 25^th January 1956 and he is now 41 years of age. He arrived in Hong Kong in or about May 1989 and he is an ethnic Vietnamese from Hai Hung, North Vietnam. In other words he has been detained in Hong Kong for more than eight years. On or about 6th June 1991, the applicant was interviewed by an immigration officer, one Mrs Chu Pang Pui Ling. It should be noted here that in those days in 1991, the practice of immigration officers in such an interview was that they did not read back the interview record, through an interpreter, to the interviewee. Such practice has since been changed.

3. The background of the applicant leading to his departure from Vietnam for Hong Kong can be found in the Board's Decision as follows :

"3. His father worked as an interpreter for the French colonial army in Vietnam and then worked privately as a brick-marker and wood-cutter. In 1961 he was re-educated for his French service until 1963. He resumed his private work and in 1967 bought a 10 ton boat to convey cement etc. In 1982 he was arrested, tried and imprisoned until 1988 for using his boat in connection with illegal departures. He then did housework until his death in 1989 after the Applicant had left Vietnam. This account given to the Immigration Officer is credible.

4. In a legal submission on his behalf it was further claimed that the father was under surveillance and his movements were restricted after the 1963 release. A new claim was made that the father died violently as he was killed in revenge for the death of a security officer in the Applicant's sinking ship incident (see below).

5. At RSRB interview the Applicant claimed his father had to report weekly 1963-82 he owned a 15 ton boat, he had no boat permit so worked stealthily, he was not tried in 1982 and the Applicant had decribed his violent death to the I.O. The Applicant now claimed relatives of the deceased and PSOs came to his father's house and beat him to death.

6. The Board accepts the French connection and period of reeducation 1961-63. This harsh treatment of the father, over 30 years ago, has had no persecutory effect on the Applicant and can no longer substantiate a well founded fear by him in 1996. The anti-French sentiment following the colonial era is now made stale by time. No mention was made to the I.O. of any problems for the father 1963-82 and instead he was described as working privately and being able to buy a substantial boat.

7. The Board noted the new claim of reporting requirements for 20 years and put it to the Applicant at interview that the claim was incredible so long after the French left Vietnam (28 years). He could only, lamely answer that his 'location' was like that. The Board finds the new claim likely to be an elaboration but if the Board has erred in this view then any restrictions on the father over 15 years ago cannot substantiate fear in the Applicant who was a private/cooperative worker at this period. Similarly the father's 1982 arrest did not involve the Applicant then working on his own large boat. The Board does not speculate on the justice of the arrest of this boat-owner in connection with illegal exodus attempts and the contradictory information supplied by the Applicant over whether his father was tried (I.O.) or not (RSRB interview) has not helped the Board in its search for the truth of the matter. It is enough for the Board to note the lack of problems for the Applicant in 1982 mean that his father's event can no longer substantiate a well founded fear for a Convention reason 14 years on in time.

8. The Applicant, in November 1991, told the I.O. that in 1989 his father had died 'of an unknown illness'. The Applicant told the Board his father had been beaten to death and he firstly said he had told the I.O. that the death was connected to his own case. When the Board queried this he changed to say the I.O. had not asked about the death so the Applicant had not told him. This total contradiction leads the Board to conclude that the father's claimed violent death is an elaboration by the Applicant to strengthen his claim to refugee status. The Board notes the I.O. did query the father's death. Although this I.O. file was not read back to the Applicant, it was completed during the interview directly on to the standard form and the Board cannot accept that the I.O. would have failed to record the violent death when he clearly gives illness as the cause."

4. The I.O. interview record dated 1^st November 1991 at page 61 of the applicant's bundle was actually as follows :

"- After Mr Bui [i.e. the applicant herein] arrived in Hong Kong, he was told by his friend in Vietnam from letter that his father died of illness (unknown) in Vietnam in 1989."

5. Unfortunately, the immigration officer did not ask for this letter. It was provided in the Guidance Notes for officers of Vietnamese Division issued by the Immigration Department that :-

"SUMMARY

(B) The interviewer should :

(i) Ensure that the applicant presents his case as fully as possible and with all available evidence."

(page 36 thereof at page 532 of the Bundle).

6. If the letter was asked for there and then, it would be quite clear at that stage whether he actually said he received a letter which said of his father's death. It should also be noted that the I.O. record did not say the applicant had told the immigration officer that in 1989 his father had died of "an unknown illness". What the record actually said was that the applicant had received a letter from a friend in Vietnam and he was told by this letter that his father had died of illness (unknown) in Vietnam in 1989. Whether the fact stated in the letter was true or not was difficult for the applicant to ascertain at that stage. That was only a piece of information he has received from a friend in Vietnam.

7. The applicant in these proceedings made an affirmation on 13^th March 1997 and in paragraph 14 thereof he said :

"I received two letters from Vietnam both relaying the same information. I had told the Immigration officer that I had received them and actually produced them at the interview. The Immigration officer waved them away and said 'not important'. He did not copy them. In the spring of 1990, I received the letter dated 6th March 1990 from my cousin in Vietnam postmarked 10.3.90. She told me that my father had been, maltreated and tortured to death. I was informed that this happened because the colleagues of the Government officer who had drowned in the accident at sea were taking their revenge. This letter also told me that my wife and children had fled to the South, to escape a similar fate and that officials were still looking for me. The letter dated 6th March 1990 is now produced and shown to me marked 'BVA-2(a)' with an official translation marked 'BVA-2(b)'"

8. Whether the applicant's version as put forward by the submissions of applicant's solicitors dated 14^th July 1996 is more credible than the I.O. record of 1991 is a matter of credibility. The Board's interview of the applicant on 30th July 1996 revealed the following :-

"Q13. Why did you not tell the I.O. that his [i.e. his father's] death was connected to your case?

A. I did.

Q14. Did relatives of the deceased take revenge on him?

A. Because I killed someone. The relatives of that person and PSOs came to my house and considered my father covered up for me. Therefore, they searched my house and beat my father to death.

Q15. Why did you not tell the I.O. that?

A. I did.

Q16. You are not helping your case by telling two different stories to me and the I.O..

A. Because the I.O. did not ask me about that and therefore I did not tell him.

Q17. That is wrong. He did ask and you said your father died of an unknown illness in 1989?

A. No. I did not say that my father died of an illness."

9. Apparently the Board considered that although the interview record was not read back to the applicant, the record should be more correct than what the applicant told the Board during the Board's interview (see paragraph 8 thereof as quoted hereinbefore). This Court cannot say such a rationale is Wednesbury unreasonable. But this Court must say it is a bit unfair to the applicant when the interview record was actually not read back to him for him to sign thereon. Thus he had not been given a chance to correct it if it was incorrect. However, apparently the credibility or the lack of the same of the applicant was not determined by such a point but on another point in the Board's Decision.

10. The Board's Decision at paragraphs 9 to 17 concerning the applicant's claim of his fear of persecution are as follows :

"9. The mother, a hawker and farmer, led a quiet life in Vietnam. Three siblings are said to have attained only M3 education due to the French connection and thus could not enter high school. They all became private or cooperative workers with no events of note. The Board notes they all attained an average education in Vietnam and were not further troubled by the French connection. It is claimed that, after the Applicant left Vietnam, his mother and siblings moved to South Vietnam to avoid problems in the aftermath of his event. There is no evidence before the Board that this voluntary move or their stay in the South has been a source of persecution for them.

10. The Applicant told the I.O. that he left M3 level of education in 1971 due to poverty. He now claims that he too had to leave school due to the French connection. Whichever account is true, he agreed with the Board that he had obtained an average Vietnamese education and at most his lack of high school education was unfair but not persecutory treatment.

11. He became an apprentice mechanic and from 1974 worked on his father's boat. He married in 1980. He then bought his own 35 ton boat and used this to transport coal etc up to 1984. No special events are recorded 1971-84 and the Board concluded the French connection had not prevented his employment and ownership of a substantial vessel.

12. In 1984 the Applicant was forced by the then government economic policy to surrender his ship to a cooperative to which he then became a working member. Authorities forbade the private possession of boats at this time. The Board is not unsympathetic to the loss of this vessel through an economic policy which has since been criticized and fallen into disuse. The loss, however, was not persecutory for a Convention reason and the Applicant was treated in a similar fashion to many Vietnamese citizens who lost land and possessions at this time.

13. He could continue to work in the cooperative but by 1986 he was disillusioned about the cooperative where corrupt cadres in charge did not repair the boats or pay sufficient wages. He was credible at interview over the problems then encountered in the Vietnamese cooperative system. He could not leave the cooperative as he had no referral letter from it and no capital to start afresh in life.

14. At the October 1986 annual cooperative meeting he criticized for 10 minutes the poor management, low pay, lack of welfare benefits and boat repairing. He suggested the incompetent cadres should resign and cooperative members should be paid in money and not in rice. As a result of his short speech he had to write a self-criticism and was scolded by the management. He had been a mechanic and deputy-captain on a vessel but he was now demoted by being sent to work on land as a boat repairman and/or rock carrier. His salary was reduced by 2/3 (RSRB interview) or remained the same (I.O. interview). He remained as a working member of the cooperative.

15. The Board finds the punishment following the speech to have been unfair but not persecutory for a Convention reason. His demotion within the cooperative followed a speech which had no political connotation and the Board does not accept that in 1986 this simple sailor was imputed with a negative political opinion and persecuted thereby. If that had been the case he would not have retained his cooperative employment.

16. The next problem arose in August 1987, 11 months later, when the cooperative failed to pay the workers in cash/rice and paid in lieu by fertiliser. It appears that this applied to all the workers and the Applicant was not singled out due to his previous event. The workers eventually discovered that corruption within the senior cooperative officials was the cause for the lack of proper pay and, in November 1987, 150 workers gathered at the Peoples' Committee Office to stage a protest. The Applicant, as one of 13 group leaders, attended.

17. The Applicant told the I.O. that a 'riot' developed and he and the other 12 leaders were arrested. The Board queried the sequence of events and, after much evasion and prevarication, the Applicant agreed that the gathering of 150 people without permission was illegal at that time in Vietnam."

11. Thus the Board considered that the applicant was evasive and had prevaricated from his original maintenance that the gathering was not illegal. It is therefore necessary to consider the Board's interview which eventually led to the Board's comment that the applicant, after much evasion and prevarication agreed that the gathering was illegal at that time in Vietnam. The relevant part of the Board's interview is as follows :-

"Q54. How did this pay dispute end in a riot?

A. Because the boats were in a deteriorating condition but they did not fix them and pay our wages in cash, we were upset and so we protested.

Q55. Where did you protest?

A. At the committee's office.

Q56. At the People's Committee?

A. Yes.

Q57. How many men gathered there?

A. 150 people.

Q58. That was an illegal gathering. Correct?

A. It was legal because we were asking the Committee to interfere and help us relieve our miserable lives.

Q59. But I can tell you a 150-people gathering without permission was illegal in 1987?

A. Because the cadres did not pay attention to the boats' condition and co-op members' lives, we only asked the committee to help us by intervening in the matter.

Q60. Did you have permission to gather?

A. We were educated by magazines and newspapers that Mr. NGUYEN Van Linh encouraged us to fight against corruption.

Q61. Did you have permission for the gathering of these 150 people? Yes or No?

A. No.

Q62. So, it was an illegal gathering?

A. We did not engage in violence. We just asked for interference from the committee to strengthen the co-op, fix the problems and improve our lives.

Q63. Out of the 150 people, why should you be arrested?

A. 13 were arrested and I was one of them who pointed out the problems of the co-op.

Q64. You tell me the gathering was not violent but you described it as a riot in the past. Comment.

A. We never engaged in a riot. We just demanded the right to do business in the co-op.

Q65. What were you asked to confess to in detention?

A. They read out a report and told me I was an element possessing ideas against the Party and belonged to a political organization. They wanted me to tell them the name of the leader of that political organization.

Q66. It surprises me. I think you were accused of illegal gathering?

A. No. They did not mention about the illegal gathering. They told me I was an element who harboured ideas against the government and belonged to a political organization which they wanted me to tell them its leader's name.

Q67. It is strange that you were not questioned because one section of the VCC is about illegal gathering?

A. Because what we asked for was reasonable. Therefore, they had to use other excuses to put us in jail.

Q68. But you had broken the Vietnam Law?

A. No. I did not break the law. I only asked for improvement to our lives.

Q69. Is it illegal in Vietnam to have more than five people gathering in public places?

A. If more than five people were doing some criminal acts, it would be illegal. But if more than five people gathered for the benefits of others, it would not."

It is quite clear from Question and Answer 69 that the applicant insisted that if more than five people were doing some criminal acts, it would be illegal. But if more than five people gathered for the benefits of others, it would not. In other words he still insisted that the gathering of these 150 people for the benefits of others would not be illegal. Thus it is quite clear that the Board erred in misunderstanding the evidence of the applicant and came to an erroneous conclusion that the applicant agreed after much evasion and prevarication that the gathering was illegal at that time in Vietnam. In other words, no reasonable Board would, in light of the actual answer given by the applicant, have come to that conclusion as it did.

12. Further the Board went on to say this :-

"18. The 13 men were detained and after one week 9 were released as they had blamed the other 4 men, who included the Applicant. The four men refused to sign confessions but after being beaten they did sign and were sent for labour duties. The Applicant was sent to the labour camp near his native village where he worked as a coolie or mechanic to December 1988.

19. The Board notes that the event of 1987 was an industrial dispute over pay caused by the corruption of the management cadres. There was no political overtone to this event. The Applicant newly claims that, as the authorities needed an excuse to detain and punish him, he was accused of being an element in opposition to the Communist Party (C.P.) and belonging to an organisation. The Board finds this new claim to be illogical as the authorities did not need an excuse to punish the Applicant for he had broken Vietnamese law by participating in an illegal gathering which had developed into a riot. The Board also notes that despite the newly alleged political accusations the Applicant was not reeducated or imprisoned, as likely for a political offender, but given the administrative punishment of labour duties as more befitting a man who had engaged in the more minor offence of an illegal gathering. The Board finds the Applicant's elaborations over the CP. Accusation to be a fiction designed to gain him political refugee status. The Board finds he engaged in an industrial pay dispute and illegal gathering (likely to have come under Vietnamese Criminal Code Article 198 - disrupting public order - sentence from a warning, reeducation without detention for 12 months to a prison sentence).

20. The Board notes that the Applicant was beaten and ill-treated during the detention of one week. The Board deplores this treatment, all too common in the Vietnamese security institutions of the 1980s, but finds that this was the action of individual officers acting outwith their duties and this treatment was not permitted or countenanced by the Vietnamese authorities.

13. This view is further emphasized in the affirmation of the Chairman of the Board Mrs Croxen. Having emphasized the importance of the Vietnamese Criminal Code ("VCC") to the Board's determinations, Mrs Croxen said specifically that the Board found that the applicant's "offence" is found under VIII Section B Article 198 of the Crimes Against Public Order of the VCC. Mr Whitehead, Counsel for the applicant, submitted that it is also fair to say that the applicant's evidence consistently and repeatedly denied that he had been charged with any criminal offence, that he did not break the law, that no mention was made of the offence of "illegal gathering". His evidence was that he was told he was an element who harboured ideas against the government and belonged to a political organisation and that he was thereafter tortured and sent, as the Board found, not to imprisonment or re-education but to "the administrative punishment of labour duties".

14. The aforesaid Article 198 states :-

"The Crime of Disrupting Public Order.

(1) The penalty for anyone who disrupts order at public places is a warning, re-education without detention for a period of up to 1 year or from 3 months to 2 years in prison;

(2) The penalty for this crime in one of the following cases is from 1 year to 7 years in prison :

(a) if it involves the use of a weapon or an act of destruction;

(b) if many persons are drawn or provoked into disrupting order;

(c) if an act of volience is committed against someone who intervenes to maintain order;"

15. An examination of the VCC, in particular Article 198 demonstrates that the applicant's evidence is entirely consistent with him being treated for matters other than those for a breach of this provision of the Vietnamese law.

16. The definition of re-education without detention is dealt with under Article 24 of the Code and not surprisingly it involves "education".

17. The Board specifically noted that "the applicant was not re-educated or imprisoned" and that he was "given the administrative punishment of labour duties" as more befitting a man who had engaged in the more minor offence of an illegal gathering. Thus counsel for the applicant submitted that it is patently clear that if the applicant had in fact been charged and dealt with under Article 198 of the VCC as the Board concluded, he would not and could not have been sentenced to "labour duties". He could only have been sent to prison or to re-education, both punishments which the Board specifically noted had not been inflicted upon this applicant. Accordingly it was quite wrong for the Board to say that labour duties were befitting the offence under Article 198. Consequently counsel for the applicant submitted, and this Court accordingly accepts, that there would be two primary consequences to the erroneous findings of the Board, and they are :

(a) The applicant's account as to the inputed policital nature of this event is completely consistent with what happened to him thereafter, i.e. labour duties as opposed to imprisonment or re-education which would be inflicted only upon a breach of the aforesaid criminal law.

(b) It is therefore quite wrong of the Board to describe the applicant's evidence about this matter to be "a fiction designed to gain him refugee status".

Clearly this erroneous finding by the Board was a primary reason as to why the Board find the applicant not to be a credible witness. Further this Court also agree with counsel for the applicant that on this ground alone the decision of the Board must be set aside and the matter must be reconsidered in the proper light of Article 198 of the VCC and the applicant's evidence, and the findings that he was sent to labour duties and was not imprisoned nor re-educated.

18. Further it is illogical and also wrong in Vietnamese law to say the authorities did not need to accuse the applicant of engaging in political activity in order to punish him, i.e. because he had committed a criminal offence. It is quite clear from the punishment that was inflicted upon the applicant that the authorities did not treat this as a criminal offence under the aforesaid article 198 at all but treated this as a political offence. Further, the Board accepted that the applicant had been beaten and been ill-treated during his detention in 1987 and again in December 1989. Accepting this unusual and extreme violence inflicted by the authorities on this applicant, the Board suggested that the incident in 1987 could be characterised as "an industrial dispute over pay" and that the applicant had been involved in "a minor offence of illegal gathering". Such a finding against such a background of violence is quite irrational. One does not get treated in this way even in Vietnam for participation in an industrial dispute over pay. Furthermore, the argument that the Board advanced was that this "was the action of individual officers acting outwith their duties", first has no basis in the evidence before the Board. Secondly, it is plainly an error of law to say in effect that such a beating could not have amounted to persecution because it had not been officially sanctioned.

19. In Tran Van Tien v. The Refugees Status Review Board, 1997 MP No.287 at page 18 Keith J. said :

"The Board said :

'The beating is to be deplored but was the individual act of an officer acting out with his duties.'

It is said that the Board was saying that the beating of A9's mother could not have amounted to persecution because it had not been officially sanctioned. If that is what the Board had been saying, the Board would have been in error. However, it is not what the Board was saying. The Board said that if A9's mother had died as a result of the beating, the beating would have amounted to persecution. The Board must have thought that even if the beating and the death were not causally connected, the beating would still have amounted to persecution."

I respectfully agree with the aforesaid observation of Keith J.

20. Further the Board has assumed that if the applicant returned to Vietnam, he would face only charges related to criminal negligence and manslaughter, which are unrelated to convention reasons. This is to ignore the evidence that was before the Board. The evidence was that the applicant was imprisoned upon this boat and was working on the boat under the supervision of Public Security Bureau Officers. The evidence on two occasions before the Board was that as a result of the sinking incident, the applicant had been charged with deliberately sinking the boat to cause a loss of socialist property and conspiring in the death of a cadre and the cadre was his jailor. Thus I agree with the submission of Counsel for the applicant that the Board has ignored this evidence or trivialized the same as apparent from their finding that the accident was a freak accident and that the applicant would be regarded at the time merely as a simple sailor. This brings me to another point and that is what counsel for the applicant called the "simple sailor" point.

21. The Board came to the view that the authorities would not have punished a "simple sailor" by imputing a negative political opinion to a person of that description. It was submitted by Counsel for the applicant that while this was perhaps true in 1986, this man had clearly ceased to be a simple sailor by 1989. By then he had been demoted for expressing views about the terms and conditions of his employment and the co-operative for which he worked and he had been amongst the leaders of the protest about corruption by Senior Co-operative Cadres. He had been severely beaten and he had been detained in a labour camp for over a year for an indeterminate time and at the time of his escape, he was under a measure of restraint on the boat upon which he was working and guarded by public security officers. Accordingly, I agree with Counsel for the applicant that it is clearly erroneous for the Board to regard the applicant as a simple sailor. The Board itself also found that :-

"21. In December 1988 the Applicant, while still under administrative labour reform, was allowed to return to duties on a boat as chief mechanic. This suggests to the Board that his punishment was being eased as he had returned to his old type of work. He discovered that the cargo of cement was over-loaded and warned his supervisor who ignored him. In heavy rain, the engine shaft broke, the boat sank and whereas the Applicant and 5 other men swam to shore, one security official drowned. All the goods were lost.

22. All six survivors were arrested for negligence and causing the death of the official. The Applicant was detained separately, beaten but refused to confess to any wrongdoing. He was sent to hospital for treatment to his injuries and his family bribed a doctor in order that he could escape. He hid with relatives for 3 months and then made an exodus. He left without his wife and children."

22. In reply to paragraphs 14 and 15 of the applicant's affirmation, Madam Chu said in paragraphs 19 and 20 as follows :-

"19. Paragraph 14 - Mr. Bui did not hand over to me the two letters he received from Vietnam. If he did, I would have made a photocopy of them and then asked an interpreter to translate them into Chinese. These documents would have been kept in Mr. Bui's file as they would have had a bearing on the decision on refugee status.

20. Paragraph 15 - Mr. Bui informed me that his father died of an illness (unknown) and I recorded this on page 5(8) of the pro-forma, I would not have recorded it unless it was related to me. If Mr. Bui's father had died violently then this is something that I would have thought Mr. Bui would have wished to relate to me instead of waiting for me to elicit such information. As I have said above the practice of taking contemporaneous notes ceased by the end of 1991 and the readback procedure was not introduced until then."

Two points should be noted from Madam Chu's reply :

(a) According to the record on page 5(8) of the proforma, the applicant did not inform Madam Chu that his father died of an illness (unknown). The record actually said the applicant told her that he had received a letter and the letter said to the effect that his father died of an illness (unknown).

(b) Madam Chu did not explain in her affidavit why she did not ask for a copy of this letter.

23. At the outset of these proceedings, Mr Marshall, Q.C. for the respondent objected to the admissibility of the applicant's affirmation dated 13th March 1997.

24. However in my view it is not the function of this court to resolve the conflict of evidence between two parties on affidavit. Consequently I would ignore paragraphs 14 and 15 of the applicant's affirmation and also the reply of Madam Chu in her paragraphs 19 and 20. Accordingly the question of admissibility of paragraphs 14 and 15 of the applicant's affirmation does not arise at all. It can be seen from the aforesaid analysis of the Board's Decision, I do not have to resort to paragraphs 14 and 15 of the applicant's affirmation.

Conclusion

25. In conclusion, I accept the submission of Counsel for the applicant that the VCC point on its own is determinative of this application. This VCC point is an error of fact and law of such fundamental importance that this application must be allowed.

26. Further the cumulative effect of the VCC point together with all other submissions made for and on behalf of the applicant hereinbefore mentioned would undermine the basis upon which the Board made the crucial finding that the applicant's perceived political opinions were not the reason for the ill-treatment and detention that he was subjected to. The VCC point was and/or the cumulative effect of all these flaws were of such a nature that the Review Board's Decision was a nullity so that Clause 13F(6) of the Immigration (Refugees Status Review Board) (Procedure) Regulations did not oust the court's jurisdiction to review that decision as decided in the case of R. v. Director of Immigration and the Refugees Status Review Board, Ex parte Do Giau and Others [1992]1 HKLR 287, per Mortimer, J. (as he then was).

27. After quashing the Decision of the Review Board dated 27^th August 1996, what should this court do consequential to the Order of certiorari. It has been said in the Court of Appeal in Le Tu Phuong and Another v. Director of Immigration and Another [1994] 2 HKLR 212 per Litton, J.A. (as he then was) that -

"To have quashed decisions and ordered the respondent to go through the screening process all over again would have taken away resources which would otherwise have been used for other applicants. This would cause delay and could, in a borderline case, result in a person being sent back to Vietnam instead of being resettled in another country because as the conditions in Vietnam improved, the perception of a 'well founded fear of persecution' shifts."

In my view once all the decisions and reasons and findings made and given by the Review Board were quashed, there is sufficient evidence to warrant a finding that the applicant has a well founded fear of persecution should he be sent back to Vietnam. In other words he should be considered as a refugee under the United Nations Conventions of 1951 and the Protocol of 1967 as he has a well founded fear for persecution for convention reasons. Accordingly, in my view, the interest of justice will be better served to grant a declaration to that effect rather than to remit the matter back to the Review Board to reconsider and reach a decision in accordance with the findings of the Court, or requiring the Board to reconsider and redetermine the status of the applicant pursuant to the United Nations Conventions of 1951 and the Protocol of 1967. Accordingly, there shall be an order in terms of paragraphs 1, 2, 3(I) and (IV) of the relief sought as follows :

"1. An order of certiorari to remove into the High Court and quash the RSRB decision dated 27^th August 1996 that the Applicant is not a refugee.

2. An order of certiorari to remove into the High Court and quash all decisions, reasons and findings made and given by the RSRB dated 27^th August 1996.

3. Upon granting the aforesaid orders of certiorari :-

(I) A declaration that the Applicant is a refugee pursuant to the United Nations Convention of 1951 and the Protocol of 1967; and

...

(IV) A declaration that all decisions, reasons and findings made and given by the RSRB dated 27^th August 1996 are void and of no effect."

28. Consequently there shall also be an order nisi for costs to the applicant to be taxed if not agreed and the applicant's own cost to be taxed according to the Legal Aid Regulations.

Representation:

Mr Robert Whitehead, inst'd by M/s Pam Baker & Co., for the Applicant

Mr William Marshall, Q.C. & Ms Roxana Cheng, Ag. APCC, for the Respondent