Ngo Duc That v. The Refugee Status Review Board

HCAL000031/1997

1997, HKAL No.31

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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Coram: Hon Stock J. in Court

Date of hearing: 25 June 1997

Date of handing down judgment: 8 July 1997

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J U D G M E N T

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1. This is an application for judicial review of a decision of the Refugee Status Review Board ("the Board") communicated to the applicant on 15^th February, 1994. Leave to make the application was granted by a judge on 16^th May 1997.

The applicant's history

2. The applicant is a Vietnamese national who escaped to Hong Kong from Vietnam in 1990. He was born in 1963. He seeks to impugn a decision of the Board by which it rejected his appeal against an immigration officer's refusal to classify him as a refugee, and itself refused so to classify him.

3. It suffices for the purpose of this judgment to mention broadly of the applicant's background and the facts upon which he relies. The details are more fully rehearsed in the Board's written reasons and in the submissions on the applicant's behalf to the Board made by the Agency for Volunteer Service ("AVS").

4. The applicant's father was a member of the South Vietnamese armed forces, and in 1975 and thereafter was required to perform unpaid labour. He escaped a year later, and there are suggestions that he was subsequently returned to forced labour for some years. The mother ran a shop which was closed by the authorities, but she was allowed, or managed, to carry on selling goods nonetheless. The applicant's schooling was discontinued in 1975.

5. There is a history of the applicant, his mother and siblings thereafter moving from place to place. In 1977 they were relocated to a rural area and after illness through severe hardship, they moved back to urban life in impoverished circumstances in 1979. In 1982 they went to Kien Giang Province, where they farmed. The applicant's father joined them for a short while but was arrested. The family was relocated once more.

6. There then occurred what has become known in this hearing as "the rice incident". The harvest was bad and the authorities were making tax demands which were considered harsh. The tax was payable in kind, with rice grown by the family, and the applicant tried to hide some rice from the authorities and was caught. He was detained for three months and then, in early 1985, he was sent to carry out unpaid labour. In 1986 he escaped.

7. This led to the boat incident, an incident which has featured large in this application. The applicant claimed through the AVS that he escaped with a doctor and with two former servicemen who had served for the South Vietnamese military. The applicant was steering the boat, and the boat was spotted by a Vietnam patrol vessel, the applicant's boat heading towards Vietnam from the direction of Thailand, because it had turned in that direction when it spotted the patrol boat. The applicant's boat was boarded. The two ex-servicemen are alleged to have committed suicide, and it is said by the applicant that it was suspected by the Vietnamese authorities that the boat had been used to bring arms from Thailand for the purpose of anti-government activities, and so the applicant and the doctor were arrested. The contention was that the applicant was then maltreated and taken to Phu Quoc Island and that he was in custody there for three years until December 1989, when he escaped. He went to Cambodia; returned to Vietnam; and finally left Vietnam in April 1990 for Hong Kong.

The Board's approach

8. He was interviewed by an immigration officer on two occasions in March 1993; and then twice by the Board, namely, on 18^th November 1993 and on 28^th December 1993.

9. The general history to which I have referred appears to have been generally accepted by the Board, save for the account of the boat incident. It is evident that the Board wished to assess the veracity of the applicant's story in that particular regard, for it is to that incident to which the Board's interviews of the applicant were directed. In the event, the Board did not believe the account which the applicant gave, not just in its detail but, so it seems clear, in its very essence. In other words, the Board did not believe that the boat incident had occurred at all.

10. In its written Decision, the Board has made detailed reference to the applicant's family history, to the ills that befell his family, including the forced labour of the father and the father's prolonged absences from home; the applicant's curtailed education; the closure of the shop; the relocations; the rice incident and the boat incident. The Board determined that the applicant's experiences prior to 1986 were not such as to constitute persecution, and the reasons for that conclusion are fully explained. The Board concluded that the unpaid labour which followed the rice incident was in all probability unpaid labour in lieu of military service, which constituted a national obligation on those of the applicant's age and background, but said that that fact, whilst discriminatory, did not constitute persecution. The Board expressed its satisfaction that :

"The authorities would not have imputed him with an adverse political opinion as a result of his hoarding of rice and that whatever the reasons for the unpaid labour, whether it be punishment for hoarding the rice to evade taxation or his national service, he was not thereby persecuted within the meaning of the Convention."

11. Finally, the Board addressed its approach to the boat incident allegations, saying that :

"The Board do not believe the applicant's claims to have been arrested in August 1986 when attempting to fleet Vietnam on a fishing boat,"

and stating in considerable detail why it rejected that story.

12. The Board then concluded that the applicant had not been persecuted for a Convention reason, and refused therefore to recognize him as a refugee.

13. The applicant, through Mr Oderberg who appears on his behalf in this application, contends that the approach of the Board in certain aspects is so fundamentally flawed as to render its decision a nullity; that it has failed to take into account material highly relevant to its required deliberations and conclusion, and has also taken into account irrelevant material.

The law

14. There is, as between the parties to this application, no issue it seems as to the law. The Board is appointed pursuant to provisions of the Immigration Ordinance, and its function is to conduct reviews of decisions by the Director of Immigration, if the Director has determined that the migrant is not a refugee. An applicant normally has the assistance of representations forwarded in writing to the Board by the AVS. The Board is also armed with the benefit of a record of interview which the immigration officer has conducted with the migrant. The Board has wide powers to review the decision of the immigration officer, is not bound by his conclusions as to facts or indeed by his interpretation of those facts. And the Board may make further inquiries as it sees fit. It may, but is not bound to, interview the applicant.

15. Section 13F(8) of the Immigration Ordinance provides that :

"A board shall not be required to assign any reason for its decision and a decision by a board shall not be subject to review or appeal in any court."

16. It cannot be too often emphasised that the role of this court upon a judicial review of the Board's decision is very limited. The Board is a specialist tribunal entrusted to come to conclusions of fact and to apply certain criteria for the determination of the status of a migrant appellant. As emphasised in Tran Van Thien v. Director of Immigration (No.2) [1996] 7 HKPLR 186 at 215, there is room for intervening in the decision of the Board only where this court concludes that the Board's decision was a nullity. Has the Board reached a decision "so outrageous in its defiance of logic that no sensible person who applied his mind to the question to be decided could have arrived at it"? : see C.C.S.U. v. Minister for Civil Service [1985] AC 374. As for findings of fact, this court can only intervene if it is shown that the Board has got the matter plainly wrong : see Nguyen Ho & Others v. Director of Immigration & Another [1991] 1 HKLR 576.

17. Clearly, if there are significant and relevant facts which the Board has omitted to take into account, or has evidently assessed facts of that kind out of their true context such as might well, if applied in true context, have moved the Board to a different conclusion, then this court might intervene. That said, there must, in an analysis of the Board's approach and of its written reasons, be injected a healthy degree of realism and common sense.

18. It is not incumbent upon a Board to interview an applicant; still less, if it chooses to interview him or her, to cover in that interview every point, or even every significant point, which the applicant has raised in his interview with the immigration officer, or with the Board through the AVS, or other representative. Nor, it seems to me, is it necessary for a Board in its written reasons to spell out expressly that which can sensibly be read into or from those reasons.

The Complaints

19. Against that analysis of the Board's function and of this court's role in review, I examine the particular complaints in this case.

20. It is said that the Board, whilst reciting and apparently accepting as fact the disadvantages to which the family was put by reason of their "bad background" (as it is called in these cases), all arising initially from the father's military connections and role, then analysed the circumstances and effect of the key incidents of the 1980s in isolation, without having regard to the true colour which those incidents bore as a result of the historical factual matrix. So it is said that the applicant's conduct and , most importantly, the attitude of the authorities to it and to him, have been viewed by the Board in a vacuum, a vacuum in which are examined country conditions and the attitude of the authorities to such matters as tax cheating and the circumstances in which unpaid labour is or was likely to be required of young men; but failed to ask what impact, if any, this applicant's known family background and history was likely to have upon the attitude of the authorities to his conduct and such motives as they may have attributed to that conduct. This is put as a fundamental failure in interpreting correctly material before them. Had that failure been cured, the applicant says, it might have led to quite a different assessment as to whether the later events in fact constituted persecution as well as a perception by the applicant that he was persecuted and that he is therefore likely again, if he returns to Vietnam, to be persecuted once more.

21. I do not agree that there can be read into the Board's reasons, or indeed into its conduct of the interviews, a failure to address in proper context or against the light of the established history of deprivation suffered by reason of the applicant's family background, the questions it addressed. It is evident that this very point - the contextual point - was before it when the AVS made its written submissions, which is not to say that that of itself concludes the point in the Board's favour. The matter expressed by the AVS (as Mr Oderberg would wish it to have been expressed in terms by the Board) is to be found in paragraphs 9 and 11 of their written submissions under the heading "Submissions on the Merits". The boat incident was there put before the Board as one which allegedly gave rise to

"... a high degree of likelihood that his family background played an important role in the suspicion, the lack of justice and punishment by the authorities.";

and, in general, that :

"It is our submission that the Applicant has a well founded fear of persecution for reasons of a political opinion imputed to him and membership of a social group consisting of family members of former ARVN servicemen."

The Board rehearsed in the clearest of terms the family history, the father's service in the army, the discontinuation of schooling, and determine that he had not up to 1986 been persecuted. In its treatment of the rice incident, the Board expressly avers to the question of imputation of adverse political opinions, showing at least that imputation, just or unjust, was a question of fact which in this exercise (as no doubt in so many others which the Board conducts) was germane and to be taken into account. In the light of the nature of the submissions made to it; its findings about the absence of persecution before 1986, (a finding which is not in itself attacked); its express reference to the father's military past and the family's subsequent deprivations; and its obvious recognition that imputation of political opinions was a danger which was alive in Vietnam at the material time; it is difficult to see from whence this court could conclude that the Board failed to address the key incidents in their full and appropriate context. I note Mr Oderberg's further point that the Board has also not made reference to the applicant's contention through the AVS that the father was an intelligence officer. I do not think it necessary for the Board to have done so. It referred to the fact that the father was a serving soldier and to the heavy consequences which followed from that fact, and I note as well that the intelligence officer allegation appeared for the first time in the AVS submissions.

22. It is said that the Board acted irrationally in classifying the rice incident as anything other than a political act or one which would have been viewed as such. In this regard, it is further contended that the Board failed to have regard to the assertion by the applicant that he had been told by the authorities themselves that by what he had done, he was standing against the government; and that they have ignored literature, in particular the Handbook on Procedures and Criteria for Determining Refugee Status issued by the Office of the United Nations High Commissioner for Refugees which warns that tax evasion is regarded, or often regarded, as a politically motivated act. Yet the Board evidently addressed the very question whether the act was or might have been assumed to be or treated as a political act. Its finding that the unpaid labour which the applicant performed after that event was either (and very probably) labour in lieu of military service and therefore nothing to do with the rice incident, or was punitive but not persecutory, was a finding which in my judgment cannot possibly be classified as clearly wrong. Its knowledge of country conditions, particularly those to which Mrs Croxen, the Chairman of the Board (although not in relation to this case) avers in an affirmation which is before me in these proceedings; and the applicant's age at the time he was required to perform unpaid labour as well as his background, quite obviously entitled the Board to come to the conclusion to which it did. The failure by the Board to mention the remark by the applicant to the immigration officer that an official had said that the act of seeking to avoid or evade the rice tax was an act against the government is not in my view surprising. The comment is ambiguous in this context, and I see no justification in assuming or concluding that the Board failed to notice this contention or to take it into account.

23. Mr Oderberg's approach to the Board's analysis of the boat incident appeared at one stage to be one which in the course of argument suggested that the Board had not acted bona fide, in that, so the argument appeared to run, the Board had started with an assumption that the story was untrue, and that it was not going to pursue avenues of inquiry which might have forced the Board to a contrary conclusion. This was a line which was not heralded by the written grounds of the application, and was one which, if pursued, would have constituted a significant new attack and might have required that the Board be given an opportunity to respond. Mr Oderberg made clear however that this was not the intention; his intention by taking me through the questions and answers almost seriatim, was rather to highlight the fact that the Board had apparently not addressed a key issue, namely, the matter of the applicant's incarceration on Phu Quoc Island for three years from 1986. They were so consumed by boat incident that they failed to address the key question, or a key question, which was that of this imprisonment prior to his escape to Hong Kong. What is more, had they done so, and established by their questioning the validity of his imprisonment account on the island, that in turn might well have moved them from their scepticism about the boat story itself. Beyond that, it is argued that the Board failed to have regard to the consistency of the account given by the applicant from the outset.

24. The Board obviously recognised the importance of the allegation concerning the boat incident. So much so that it conducted two interviews of the applicant in relation to it. And its analysis of the evidence and its explanation of its conclusions about the incident could hardly have been more thorough. Once the Board concluded, as it did, that it simply did not believe the accounts which the applicant had provided, there was no need in my judgment for it to interview the applicant about the imprisonment he allegedly suffered as a result of that incident. The two went together. It was the applicant's case that he had been the victim of politically based persecution, and that that was evident from his incarceration for a politically motivated incident, or one to which the authorities had imputed political motive; and that that imputed motive was conjured from the boat incident, nothing else. It follows, so it seems to me, that if there was no boat incident, the applicant's case to the extent that it depended upon the boat incident, fell away altogether. As for consistency of his previous accounts, I am by no means convinced, having examined what the applicant said to the immigration officer, that his previous accounts can fairly be classified as consistent; they certainly omitted significant matters which one might have expected him to specify. But be that as it may, the Board decided to interview the applicant about the boat incident against the background of the interview records which it had. I do not see the need for the Board to have spelt out in its written reasons its recognition of the story given to the immigration officer and the fact that that story and the account recently provided by the AVS were or were not consistent. Nor do I see any reason to suppose that the Board did not have those accounts and their consistency, or lack of them, in mind.

Conclusion

25. It follows from my analysis of the applicant's arguments that there has been demonstrated to me no basis upon which to conclude that the Board has made an error of any fundamental kind. It seems to me, on the contrary, that it carried out a very thorough examination of the applicant's case, and that it was entitled to come to the decision to which it came. There exists no basis upon which this court can lawfully intervene.

26. Accordingly the application is dismissed, and the relief sought is refused.

27. There will be an order nisi that the applicant do pay the respondent the costs of this application, to be taxed if not agreed; the applicant's own costs to be taxed.

Representation:

Mr William Marshall S.C. & Ms Joyce Chan of AGC, for Respondent

Mr Keith Oderberg, inst'd by M/s Pam Baker & Co., for Applicant