Bui Van Ao v. The Refugee Status Review Board

CACV000179/1997

IN THE COURT OF APPEAL

1997, No. 179
(Civil)

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

Dates of judgment : 7 and 11 November 1997

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J U D G M E N T

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Mortimer, V.-P.:

1. This is an appeal by the Refugee Status Review Board (the Board) against a decision of Yam J in which he quashed a decision of the Board of 27 August 1996. The Board's decision was that the applicant was not a refugee within the meaning of Art. 1A(2) of the United Nations Convention on Refugees 1951 and the Protocol of 1967. In consequence the judge also granted a declaration that the applicant is a refugee.

Background

2. The application arrived in Hong Kong by boat on 18 May 1989. After usual preliminary examinations, he was interviewed by the Immigration Officer on 1 November 1991. That interview was recorded in detail contemporaneously. The Immigration Officer refused him refugee status on 5 November 1991. Originally the Board reviewed his case in February 1992 when the decision of the Immigration Officer was confirmed. The Board reviewed the decision again on 13 July 1996 leading to the decision on 27 August 1996 which again confirmed the Immigration Officer's finding and led to these proceedings.

3. The Board's decision - which followed a detailed review of the evidence - was as follows:

"The Board finds that neither on a singular or cumulative basis has the Applicant encountered Convention persecution. The events in his life vary from loss of property due to government regulations, problems arising from an industrial dispute and events following a shipwreck. The two letter events are now made stale by time and the Board cannot accept that if returned to Vietnam in 1996 the Applicant will face problems over a shipwreck 8 years ago in which he was an innocent survivor. The Applicant's anticorruption stance of 1986 is now Vietnamese government policy and his 1986 event could no longer be a source of problems for him.

In view of the evidence available, the Board was unable to recognise the Applicant as a refugee.

He has not encountered persecution for a Convention reason nor does he has a well-founded fear of persecution for such reason if returned."

4. The judge held that the Tribunal had made serious errors in their understanding of the evidence, errors in deciding the facts and errors in law which in turn led to its decision on the main issue to be irrational in the Wednesbury sense.

The applicant's case

5. The applicant contended that he had been persecuted in Vietnam for his political opinions and that for this reason he had a well-founded fear of persecution if he returned to Vietnam. That, of course, was for a convention reason.

6. Briefly the applicant said that his father had been mistreated before him because of his father's service for the previous colonial power, France. He said that after he had left, a relative of a dead public security officer had killed him in revenge. The applicant was blamed for the death of the public service officer - a point to which I will return.

7. The applicant gave an account of having to join a cooperative and that led to three incidents:

(a) In 1986, at a cooperative meeting he criticised the management and the working conditions. He said the pay should be in money not rice. The result was that he was scolded, made to endure self-criticism and was demoted. At one time, he had said his pay was halved but at another, he said his pay remained the same after demotion.

(b) In 1987 when workers were paid in fertiliser and officials were found to be corruptly keeping wages for themselves, the applicant - as a leader of 150 other workers - staged a protest. He said originally, that this led to a riot but that was later retracted. Following his arrest, he was tortured and eventually sent to a labour camp near his native village.

(c) During the period when he was in the labour camp, he was sent to work as a boat mechanic but the boat on which he worked was lost at sea in bad weather. The public security officer in-charge was drowned. When the applicant and others swam ashore, the applicant was blamed for the security officer's death. Also it was said that he had caused the loss of socialist property. He was consequently detained and beaten to such an extent that he was hospitalised. It was during the time he was in hospital that he escaped to Hong Kong.

8. The Board considered these allegations. It had to assess the applicant's credibility - particularly as the record shows that his account in some important, as well as some minor respects, differed from time to time. The differences were between the recorded account given to the Immigration Officer on arrival, the account put before the Board for review and the oral evidence given to the Board.

The judge's findings

9. The judge found that the Board's errors in assessing the treatment the applicant received after the protest by 150 workers and its consequences to be decisive in the review. On that, he said:

"In conclusion, I accept the submission of Counsel for the applicant that the VCC (Vietnamese Criminal Code) 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.

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 ..."

10. It is necessary to set out - so that the matter can be understood - the Board's review of the evidence on the VCC point. The Board said - having outlined the facts:

"The Applicant told the I.O. (Immigration Officer) that a 'riot' developed and that 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.

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.

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).

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."

On this, the judge decided:

(1) The Board thought that the appellant had admitted that the assembly of 150 people was illegal whereas he had not admitted that matter.

(2) That because the applicant was punished by being sent to a labour camp rather than re-education or prison - the prescribed punishment for the offence under VCC section 198. The evidence was not consistent with him being dealt with for this offence.

(3) That the Vietnamese authorities did not treat this as a criminal offence by the applicant.

(4) The Board was wrong to characterise the incident as a "dispute over pay" and that the applicant had been involved in an illegal gathering.

(5) Finally, that Board erred in law in finding that the beating and the ill-treatment "could not have been persecution" because it has not been officially sanctioned.

The judge's approach

11. As an example only, of the judge's detailed approach on this matter, he said on p.11 of his judgment:

"... 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."

And in a further passage:

"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."

12. These are examples of the judge being lured into and usurping the fact-finding function of the Board.

Conclusion

13. In ex parte Do Giau and Others [1992]1 HKLR p. 287 I described the screening process - that description remains sound. Of course, the screening process is not perfect. It is not perfect in its procedure and being a human organisation, it cannot be said that its procedure is perfectly fair. But as a system for screening refugees it probably cannot be matched - or bettered - elsewhere. Most importantly, the Board is a specialist tribunal with a knowledge of Vietnam country conditions - both past and present. It has built up a huge experience of those conditions from its daily work and its reading. It finds the facts in this case and others with huge advantages over any court of law. Take examples. The circumstances in which a person may be dealt with for a crime in Vietnam by administrative punishment rather than in other ways, and whether the authorities, countenanced or permitted ill-treatment by officials at the time of this matter, are decisions which are clearly and obviously ones which are within the province of the Board and not the Court. In my judgment the judge below was wrong in usurping these decisions. Also, he was wrong when he determined that the Board erred in law in saying that the ill-treatment meted out after detention must have been persecution for a convention reason.

14. The principles upon which the Court approaches the review of a tribunal decision are, of course, too well-known to require re-statement. Nevertheless in refugee cases, the Court must carefully scrutinise the decision-making process and must interfere if the result is one which no reasonable tribunal could have reached. It seems to me from an examination of the decision-making process, the most that can be said here is that the Board was in error when it said that the applicant had specifically admitted that the gathering of 150 people was illegal. He never did so in those terms. However, he did admit facts from which it was open to the Board to conclude that an offence had been committed. In all those circumstances this error was certainly not one which could vitiate the decision-making process. Nor do any of the other matters relied upon by the judge demonstrate that the Board's decision-making process was flawed so as to necessitate the Court's interference.

15. Further, there was no basis upon which the judge could properly find the Board guilty of errors of law in its judgment of the effect of the Vietnamese Criminal Code or in its finding in relation to the ill-treatment by the Vietnam officials. Nor indeed is the categorisation of the applicant at one time as a simple sailor a legitimate matter for the Court's interference.

16. The Board dealt with the applicant's case in detail. His case deserved nothing less. It pursued its duty in assessing credibility. It had to make necessary findings of fact, applying its specialist knowledge and experience. It did so. Having done that, its assessment and consideration led to the decision which I have already set out - the nub of which is:

"that neither on singular or accumulative basis has the applicant encountered convention persecution".

Of course, the Board accepted that he had been seriously ill-treated. But in the end that is not to the point. The judge was clearly concerned - as he ought to have been, and as indeed I am - for the applicant but he trespassed on the fact-finding throughout when he ought to have strictly restricted himself to a scrutiny of the decision-making process. His decision, in my judgment, was plainly wrong and I would allow the appeal.

A final point

17. I would just add one point. The Court has power to make declarations such as the judge made in this case. But when a decision of a specialist tribunal is quashed, a declaration which determines the very facts which are solely within the province of the tribunal is hardly ever justified in the absence of agreement by the tribunal that such a result is an inevitable result of the judge's decision to strike down its earlier decision.

18. For those reasons, I would allow the appeal.

Godfrey, J.A.:

19. I agree.

20. In my judgment, the only way in which the applicant could have succeeded in his claim here that the decision of the Refugee Status Review Board should be quashed, and the matter referred back to it for determination (the only relief which, in my provisional view, could properly have been granted) would have been by satisfying the court that the only reasonable conclusion open to the Board, on the material before it, would have been that the applicant had been the victim of political persecution.

21. To prove, as the applicant did, that he had been subjected to brutal and unlawful punishment (1) for complaining against the corrupt and inefficient management of his co-operative; (2) for participating in a mass protest for the same reason; and (3) for his alleged responsibility for the loss of a ship (in an incident in which one person died) on which he was, in effect, incarcerated, is certainly a start. But it is not the finish. It was still for the applicant to satisfy the Board that he had been treated in this way for political reasons. He failed to do so.

22. I do not see any ground on which the court could hold that the Board was not entitled so to conclude even after subjecting its decision-making process to a "most anxious scrutiny", as I think we are bound to do (and as indeed we have done) : compare Bugdaycay's case [1987] AC 514, per Lord Bridge at p.531.

23. Accordingly, I too would allow this appeal. I wish I could have found some way to do otherwise. The applicant is the proper subject of compassion. But we are here to dispense justice according to law, and compassion cannot be allowed to deflect us from doing so.

24. The real problem in cases like the present is a political, not a legal, problem. However wide the definition of "refugee" for convention purposes, there are those obviously deserving of protection under other international instruments who fall outside it. A good example of such an instrument is the Convention against torture and other cruel, inhuman or degrading treatment or punishment. People may be fleeing from torture and inhuman or degrading treatment even though such treatment may not be on the grounds of race, religion, membership of a social group, or political opinion. In the United Kingdom, expulsion of such persons in circumstances where there are substantial grounds to conclude that they face such treatment would be contrary to the international obligations of the United Kingdom under that Convention and is not in practice effected. But whatever the practice in such cases may be in the United Kingdom, the matter is there (as here) entirely within the province of the executive, not the courts. We would be exceeding our jurisdiction if we were to yield to the temptation to issue orders to the Hong Kong immigration authorities in a field which is entirely a matter for them and not for us.

Mayo, J.A.:

25. I agree entirely with what has been said by my Lords, Mortimer V-P and Godfrey JA. There is nothing that I can usefully add.

Mortimer, V.-P.:

26. The appellant is to have the costs here and below.

Appeal allowed. Order for certiorari and declaration set aside. Costs to the appellant here and below.

Representation:

Mr W.R. Marshall SC and Mr Francis Kwan (Dept of Justice) for Respondent (Appellant)

Mr Robert Whitehead (M/s Pam Baker & Co) for Applicant (Respondent)