Phan Dinh Hoanh v. The Refugee Status Review Board

CACV000139/1997

IN THE COURT OF APPEAL

1997, No. 139
(Civil)

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Coram: Hon Nazareth, V-P, Godfrey and Mayo, JJ.A. in Court

Date of hearing: 26 September 1997

Date of handing down judgment: 7 October 1997

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J U D G M E N T

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Nazareth, V.-P.:

1. This is an appeal against the order of Yeung J made on 5th May 1997 refusing the appellant's application for leave to apply for judicial review of the decision of the Refugee Status Review Board ("the Board") that he is not a refugee and ordering him to pay the respondent's costs.

2. The relevant facts, shortly stated, are as follows. The appellant's father served with the ARVN (The South Vietnamese Army) between 1960 and 1963. In 1967 he joined the Southern Vietnamese police force until the fall of Saigon in 1975. The appellant's father was subjected to forced labour and political re-education from October 1975 until October 1979.

3. The appellant obtained 17 points in the Joint University Entrance Examination in 1985. He was, however, not offered a university place despite the fact that other applicants, who obtained the same number of marks, were offered places. The appellant complained to the education authorities who told him that his rejection might have been due to his father's previous ARVN and police service.

4. The appellant again complained, quoting a newspaper report that the Government had recently agreed to cease discrimination against families of former ARVN servicemen and intended to improve educational standards. He was interviewed by the County People's Procuratory. The interview came to nothing as his complaint that he had been discriminated against was not answered. He said he would write to the central government. The appellant was then summoned to the local security office. He was interviewed by the officer in charge. During the interview the officer hit the appellant, asking him why he had complained to the county level. The appellant struck back. He was arrested and detained. He was told that if he signed a confession admitting the assault, he would not be sent to a remote place. The appellant signed the confession but was still sent to undergo re-education in a labour camp.

5. The work was so hard that he escaped from the re-education camp in 1987. After hiding for over two years with a friend, he made an illegal escape from Vietnam in April 1989 fearing that if the authorities found him, he would be sent back to re-education.

6. The appellant was never charged under the Vietnamese criminal code or at all. He was never put on trial. He was never given a determinate sentence. He contended that he was a refugee from injustice and that as such his fear of persecution continued.

7. The Refugee Status Review Board accepted that the appellant might have been denied admission to university due to his father's ARVN connection. It also found that he was sent to a labour camp for the assault and for resisting national policy.

8. Having referred to the facts mentioned, the Board in its reasons for decision continued -

"Accepting that the Applicant may have been denied admission due to his father's ARVN connection the Board does not accept that such denial amounted to persecution even though it may have derived from a Convention reason. What happened afterwards was due to the Applicant's anger at his rejection. Righteous though it may have been his actions provoked the local security officer into striking him. Although he had no right to do so the young Applicant retaliated, whether in self defence or anger is irrelevant. By doing so he put himself in the wrong. He then aggravated his own position by naively believing that if he signed a confession to assaulting the security officer he would not be sent to a remote place. Having signed it he was further accused of resisting national policy and sent to a remote labour camp. That he was sent there without trial and the duration was dependent upon the authorities' judgment of his good behaviour was reprehensible but the normal practice in Vietnam.

The Board sympathized greatly with the young Applicant in a situation not initially but later partly of his own making; however, it did not consider that either the denial of a university place or his subsequent re-education for retaliating against a security officer amounted to persecution for a Convention reason. He has not established a well founded fear of persecution for such reason if returned to Vietnam.

There was insufficient evidence laid before the Board to justify the Board finding in the light of such evidence any well founded fear of persecution by reason of race, religion, nationality, membership of any particular social group or political opinion on the part of the Applicant which would justify any reversal of the decision of the Director of Immigration in this case; nor was there any or any sufficient evidence before the Board which enabled it to find a doubt the benefit of which could be exercised in the Applicant's favour."

9. The appellant in his Notice of Appeal contends that the judge erred by not holding that it was arguable that the Board's decision that the appellant had not established a well-founded fear of persecution for a Convention reason made errors of law in three respects.

10. Before turning to those, it is helpful to set out the test upon which leave for applications for judicial review is to be granted by the courts. This is not in dispute and was stated in Ho Ming-sai and others v The Director of Immigration [1994] 1 HKLR 21 in the following way:

"In considering whether to grant leave, the judge should have asked himself whether the material before him disclosed matters which, on further consideration, might demonstrate an arguable case for the grant of the relief claimed."

It is also of assistance to touch briefly upon the principles the courts have identified in the application of that test, and the recognition of the virtually exclusive role assigned to the Board by the relevant legislation particularly as to the determination of the facts, and the concomitant limited jurisdiction of the courts. Thus, as Mr Marshall SC, who appears for the respondent with Miss Joyce Chan, was at pains to point out, there is a statutory framework to which regard must be had in the Statement of Understanding dated 20th September 1988 between the Hong Kong Government and the United Nations High Commissioner for Refugees which bears upon the 1951 Convention relating to the status of refugees and the 1967 Protocol; likewise the Immigration (Refugees Status Board) Procedure Regulations 1989 and the UNHCR handbook. In addition, the attention that the courts have given the matter of refugee status over recent years, particularly in a similar context to the present, affords considerable guidance. Much of that which is in point in this appeal is to be found conveniently collated in Tran Van Tien v Director of Immigration(No.3) (1996) 7 HKPLR 215, where the following is pointed out. It is the Board that is charged with the duty of reviewing the determination of refugee status. The courts have only a limited role to play. The Boards are specialist tribunals and have acquired knowledge of country conditions. They are in a far better position to determine such matters than High Court judges.

11. Mr Whitehead for the appellant submitted, first of all, that the judge had erred in holding that the Board had not erred in failing to recognise that the appellant had a well-founded fear of persecution -

(a) on account of his membership of a social group, i.e. an ARVN family; or

(b) because of his imputed political opinion, i.e. resisting national policy,

or both, after he was sent without trial to a labour camp for an indefinite period to be re-educated. He pointed out that the judge sought to explain away the treatment received by the appellant as being the result of a faulty system, the abuse of power by some government officials or that such treatment was commonplace in Vietnam. He submitted that if these explanations were correct, they would bring the appellant's claim to refugee status within the 1951 Convention. It has to be said that the explanations given by the judge are plainly not directed to the test in Ho Ming-sai and moreover that they are questionable. However that may be, it is not the judge's reasons that matter, but the question whether the Board's decision survives the Ho Ming-sai test. And that the test, not having been addressed, is open to this Court to do so, if that is considered appropriate, which I do.

12. In the latter context, Mr Whitehead made it clear that the appellant did not seek to question the Board's findings that the denial of a university place did not amount to persecution for a Convention reason. However, he pointed out that the Board had clearly found that the appellant had been sent to undergo re-education "for his assault and for resisting national policy". The Board was charged with the duty of ascertaining the facts but had not attempted to ascertain what the national policy that had been resisted was, even though resting its main finding upon the appellant having resisted it. He contended that the national policy in question must have been the government policy of discrimination against the families of former ARVN servicemen to which the appellant had drawn attention before he was summoned by the local security office. Merely striking a public security officer or protesting against not being given a university place could not, he submitted, have attracted the severe punishment of being sent to a remote labour camp, a fortiori, when it did not appear that resisting national policy was a crime in the Vietnamese Criminal Code ("the VCC") which was available to and known to be used by Boards in Hong Kong.

13. Mr Whitehead also submitted that the Board was both wrong and irrational in regarding the striking back of the public security officer by the appellant as an aggravation of the position or even as a substantial cause of being sent to a labour camp.

14. In the foregoing circumstances, he submitted that there were plainly two apparent Convention reasons which overwhelmingly established persecution, i.e. being discriminated against as a member of a social group, and attribution of political motives in resisting national policy. The Board's conclusion, therefore, that a well-founded fear of persecution was not established, was irrational or, at the very least, clearly was arguably irrational.

15. Mr Whitehead submitted also that there was procedural impropriety in the Board's failure to establish or at least explore the factual nature of the national policy said to be resisted; likewise in failing to consider and investigate whether resisting national security was an offence and what sort of penalty was provided under the VCC. He pointed in this context to paragraph 85 of the UNHCR handbook which notes that persecution for an offence may be a pretext for punishment for political opinions and that such excessive or arbitrary punishment would amount to persecution.

16. Finally, Mr Whitehead submitted that the Board made errors of law, first in finding some justification in officers acting beyond their authority, and second, in taking the view that in striking back at the public security officer, the appellant "put himself in the wrong" and was somehow himself to blame for having been sent to a labour camp.

17. I am unable to accept that there was any procedural impropriety, particularly any impropriety that was material, in the Board not further investigating the factual nature of the national policy resisted or the categorisation of such resistance in the VCC. It could have been the national policy on allocating university places, as Mr Marshall pointed out. Whichever it was, there was no obligation upon the Board to make a finding on the precise nature of the policy or to record such a finding. It is difficult to see how these would be necessary for, or how their absence would undermine, the Board's finding made with its knowledge of country condition, that there was no well-founded fear of persecution.

18. Likewise, it is difficult to see how reliance upon officers acting beyond the scope of their authority and regarding the appellant's action of striking back as a partial cause of being sent to labour camp can be errors of law on the part of the Board. The first matter, in any case, might be laid at the door of the judge, but hardly at that of the Board. The latter plainly was simply one of the Board's factual findings and plainly a reasonable one, to say the least. This complaint also plainly has nothing in it.

19. I come then to Mr Whitehead's real point, i.e. that of irrationality in the Wednesbury sense. He submitted that not only will the appellant, if deported to Vietnam, be regarded as someone who has resisted national policy and assaulted a public service bureau officer to boot, but someone who has evaded his sentence of labour camp, to which he would certainly be returned. Unquestionably, he therefore submitted, the appellant has a well-founded fear of persecution. It may be that had the appellant been returned to Vietnam in 1986, when he escaped, he would have been sent back to labour camp. Whether that would be so in 1991 when the Board made its decision, may be rather more questionable. But certainly, if the Board with the knowledge of country condition, it must have had, concluded that there was no well-founded fear of persecution, that conclusion cannot be faulted by this Court as irrational. Moreover, as Mr Marshall pointed out, even if the appellant were now to be returned to labour camp that would not necessarily amount to persecution and, if it accorded with the normal procedure in Vietnam, would not be persecution.

20. I am satisfied, therefore, that not only is the Board's decision rational but that it is not even arguable that it is irrational. I am also satisfied that the material before the Board (and before us for that matter) does not disclose matters which, on further consideration, might demonstrate an arguable case for the grant of the relief claimed.

21. While, therefore, one cannot but have sympathy for the devastating misfortunes the appellant has suffered, given the court's limited role, clearly the appeal must be dismissed.

Godfrey, J.A.:

22. On the material before the Board in this case, it could well have concluded that any fear on the part of this unfortunate man that he would suffer persecution if returned to Vietnam was a well-founded fear.

23. However, that does not mean that the Board's contrary conclusion is to be rejected as irrational; that is to say, as a conclusion so absurd that no-one, properly directing himself as to the law and the facts, could possibly have arrived at it.

24. Only where the Board has acted improperly or illegally, or has arrived at so absurd a conclusion, can the court interfere with the exercise by the Board of its statutory function.

25. In the present case, I am afraid I can find nothing in the material before us which might, on further consideration, demonstrate an arguable case for such interference.

26. With extreme reluctance, I therefore find myself compelled to agree that this appeal must be dismissed.

Mayo, J.A.:

27. I agree. There is nothing I can usefully add.

Representation:

Mr W.R. Marshall SC and Miss Joyce Chan for the Respondent

Mr Robert Whitehead (M/s Pam Baker & Co) for the Appellant