Phung Dao Khang v. The Refugee Status Review Board

HCAL000057/1997

1997 No. A.L. 57

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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Coram: The Hon. Mr. Justice Keith in Court

Date of hearing: 24 July 1997

Date of delivery of judgment: 24 July 1997

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J U D G M E N T

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1. I propose to grant the Applicant leave to apply for judicial review of the decision of the Refugee Status Review Board ("the Board") that he is not a refugee, and to extend his time for doing so. In view of the fact that the Director of Immigration's practice is now, in many cases, to agree to the re-screening of an asylum-seeker from Vietnam if leave to apply for judicial review of the decision refusing to grant him refugee status is granted, I propose to give my reasons in brief by way of guidance to the Board.

2. The Applicant claims that for 8½ years he was detained in a labour camp, eventually being released in December 1986. The Board did not doubt that. What it regarded as "inconceivable" was that he had been detained simply because he had helped his uncle escape to China. But even if that had been the reason for his detention, the Board thought that it could not have amounted to persecution because the Applicant was simply "breaking the law", and "there was nothing to suggest that the authorities would impute a political motive to him for what he did". In my view, it is arguable that in reaching these conclusions the Board erred in law, because it would have been irrational for the Board to conclude that to assist his uncle to evade immigration control at the time of tension between China and Vietnam would not be regarded by the Vietnamese authorities as politically motivated. It is arguable that it must have been regarded as politically motivated for the Applicant to have been detained for such a long period.

3. The incident which gave rise to the Applicant's decision to flee Vietnam in the summer of 1989 was his arrest for inciting other residents in the New Economic Zone in which he lived to protest over the lack of medical facilities. The Board concluded that this incident could not have given rise to a well-founded fear of persecution because the Applicant "was guilty of an offence", he would not "have had a political opinion imputed to him", and he had "only been imprisoned for a very short time". In my view, it is arguable that in reaching these conclusions the Board erred in law. First, it could be said that the Board ignored the fact that the Applicant was breaking the law simply in order to improve the services available to people who were themselves said to be the victims of persecution. Secondly, it could be said that it was irrational for the Board to conclude that to protest about their living conditions would not be regarded by the Vietnamese authorities as politically motivated. Thirdly, it could be said that the Board ignored the fact that the reason why the Applicant's "imprisonment" was for such a short time was because it was brought to an end by his escape.

4. The Board's decision - that the Applicant did not in April 1992 when the Board considered his case have a well-founded fear of persecution in Vietnam if he was returned there - was substantially based on its conclusion that he had not been persecuted in the past. If that conclusion is undermined by the arguable errors of law to which I have referred, the Board's ultimate decision on the Applicant's claim to refugee status would itself be impugned. For these reasons, leave to apply for judicial review should be granted.

Representation:

Mr. Keith Oderberg, instructed by Messrs. Pam Baker & Co., for the Applicant.

Mr. S.H. Kwok, instructed by the Department of Justice, for the Respondent.