Bui Van Ao v. The Refugee Status Review Board

HCAL000008/1997

1997 A.L. No. 8

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: The Hon. Mr. Justice Keith in Court

Date of hearing: 17 April 1997

Date of delivery of judgment: 17 April 1997

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J U D G M E N T

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INTRODUCTION

1. The Applicant comes from Vietnam. He arrived in Hong Kong in May 1989. He applied for refugee status but his application was refused. In due course, his claim for refugee status was considered by the Refugee Status Review Board ("the Board") for a second time. I have not been told why that was, but it does not matter. The Board interviewed him on 30th July 1996. It decided to confirm the decision that he should not be granted refugee status. That decision was communicated to him on 9th September.

2. On 15th March 1997, he applied for leave to apply for judicial review of that decision. Jerome Chan J. considered that application without a hearing. He decided to grant leave. He did so on 19th March. The Director of Immigration now applies for that leave to be set aside. For the purpose of determining this application, I have read with care the following documents:

(i) the Board's reasons for confirming that the Applicant should not be granted refugee status,

(ii) various passages in the following documents to which my attention has been drawn: the notes made by the immigration officer who interviewed the Applicant of what the Applicant said in his screening interview in November 1991, the written submission made to the Board in July 1996 by his solicitors, and the transcript of his evidence to the Board,

(iii) the detailed grounds on which the Board's decision is attacked in the Notice of Application,

though the grounds advanced by Mr. Robert Whitehead today on behalf of the Applicant were more focused and less wide-ranging than those set out in the grounds.

THE APPLICANT'S CASE

3. It is important to remember that a refugee is not simply a person who has a "well-founded fear of being persecuted" if he is sent back to his country of origin. To be a refugee, the fear of persecution has to be "for reasons of race, religion, nationality, membership of a particular social group or political opinion". Those reasons are commonly called "Convention reasons". Thus, an asylum-seeker may have a well-founded fear of being ill-treated in a manner which amounts to persecution. But what the Board has to be satisfied about is whether that fear of persecution is for a Convention reason.

4. I mention this rather obvious point because I believe that an appreciation of it is at the core of the case. The main Convention reason for which the Applicant claims that he fears persecution is what the Vietnamese authorities regard as his political opinions. He claims that it was his perceived political opinions which were at the heart of the serious ill-treatment to which he was subjected at three critical times in his life: first, when he was demoted in 1986 at the co-operative where he was then working; secondly, when he was tortured and detained in 1987 at a labour camp near his native village for over a year; and thirdly, when he was tortured in 1988 or 1989 and threatened with the possibility of serious criminal charges in connection with the sinking of a vessel on which he had been working, the loss of its cargo and the death of a public security official on board.

THE BOARD'S FINDING

5. The Board did not accept that his perceived political opinions were the reason for such ill-treatment as he was subjected to. The Board therefore concluded that any fear which he may have had of persecution in the future was not for a Convention reason. It was this crucial finding of fact which was at the heart of the Board's reasoning. It was based partly on the Board's assessment of the Applicant as a witness of credibility, and partly on the Board's view that it was unlikely that a "simple sailor" (which was how the Board describe the Applicant) would be regarded by the Vietnamese authorities as having "negative" political opinions.

THE ATTACK ON THE BOARD'S FINDING

6. Mr. Whitehead attacks both these planks of the Board's reasoning. Neither of them on analysis, he says, can support the Board's crucial finding. The Board's assessment of the Applicant as a witness of credibility is said to be flawed in three respects. First, an analysis of the evidence before the Board shows that there was not a "total contradiction" (para. 8 of the Board's reasons) in the Applicant's evidence relating to the circumstances surrounding his father's death. Secondly, an analysis of the evidence before the Board shows that there was no "evasion and prevarication" (para. 17 of its reasons) on the part of the Applicant in connection with the legality of the gathering in November 1987 which resulted in his being sent to the labour camp. Thirdly, one of the reasons why the Board rejected the Applicant's claim that his actions in November 1987 were believed by the authorities to be politically motivated was because the authorities did not need to accuse the Applicant of engaging in political activity in order to punish him. The Board reasoned that the authorities could have punished him for helping to organise an illegal gathering. That is said to be illogical: the fact that he could have been prosecuted for an illegal gathering does not mean that that was in fact the reason why he was sent to the labour camp.

7. Moreover, Mr. Whitehead accepted that a simple sailor is unlikely to have had "negative" political opinions imposed on him. The point he made was that although the Applicant might have been fairly described as a simple sailor when he was demoted in 1986, he had ceased to be a simple sailor by 1989. By then, (a) he had been demoted for expressing views about the terms and conditions of his employment at the co-operative at which he worked, (b) he had been amongst the leaders of a protest about corruption by senior co-operative cadres who had allowed fertiliser to be substituted as remuneration for cash and rice, (c) he had been detained in a labour camp for over a year for an indeterminate time, and (d) although he had been released from detention by 1989, he was still under a measure of restraint because he had been required to work as chief mechanic on the vessel which eventually sank, and while on board he had been guarded by public security officers. Accordingly, it is claimed that it was wholly irrational for the Board to have regarded him by then as a simple sailor, and therefore wrong for the Board to conclude that negative political opinions would be unlikely to have been attributed to him.

8. Indeed, it is claimed that it was irrational for the Board to have concluded that the Vietnamese authorities would not have regarded the Applicant as having negative political opinions. That is said to be the only possible inference to be drawn from the way he had in fact been treated. To have been treated as he had been would have been inconsistent with the notion that he was simply regarded as having been engaged in 1986 in an industrial dispute.

9. There is one further point which Mr. Whitehead took, and that related to the nature of the charges which the Applicant feared he would face over the loss of the vessel. The Board assumed that the only charges which the Applicant would face related to criminal negligence and manslaughter. That was why the Board concluded that if his conviction of, and punishment for, those charges amounted to ill-treatment, that ill-treatment would not have been for a Convention reason. It is said that that assumption by the Board was completely wrong. The Applicant had told the Board that he had been charged "with deliberately sinking the boat to cause a loss of socialist property and conspiring [in the] death of the cadre". It may be that the Board rejected that part of the Applicant's evidence in para. 23 of its reasons, but it is equally possible that the Board simply overlooked the Applicant's evidence on the topic.

CONCLUSION

10. There may be answers to all of these points, but I must remember that the threshold for the grant of leave to apply for judicial review is a relatively low one: does the material disclose matters which, on further consideration, might demonstrate an arguable case for the relief claimed? I regard the points made by Mr. Whitehead, when taken as a whole, as being arguably capable of undermining the basis on which the Board made the crucial finding of fact to which I have referred. I therefore hold that the material before me does disclose matters which, on further consideration, might demonstrate an arguable case for the relief claimed. In those circumstances, I refuse to set aside the Applicant's leave to apply for judicial review, and the summons for it to be set aside must be dismissed.

11. I turn to the Applicant's summons for an order which has the effect of preventing the Director of Immigration from removing him from Hong Kong until his application for judicial review has been determined. The Director of Immigration does not oppose the making of such an order if the Applicant's leave to apply for judicial review is not set aside. For reasons which I have expressed in other cases, I am not convinced that the method of achieving the non-removal of an asylum-seeker from Hong Kong should be by imposing a stay under Ord. 53 r. 3(10)(a). What I can do is to grant an injunction, and in this case I direct that the Director of Immigration be restrained from removing the Applicant from Hong Kong until his application for judicial review has been determined.

Representation:

Mr. Robert Whitehead, instructed by Messrs. Pam Baker & Co., for the Applicant.

Mr. William Marshall Q. C. and Ms. Roxana Cheng, of the Attorney-General's Chambers, for the Respondent and the Director of Immigration.