NGUYEN VAN LANH v. TORTURE CLAIMS APPEAL BOARD

HCAL 151/2020

[2021] HKCFI 3189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 151 of 2020

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by counsel for the Applicant in open court;

1.  the application for leave to appeal out of time dismissed; and

2.  the application for leave to apply for Judicial Review be reinstated; and

3.  leave to apply for Judicial Review granted.

Observations for the Applicant:

1.  This is an application for leave to appeal out of time against the Court’s decision in dismissing the Applicant’s leave application for judicial review of a decision made by the Torture Claims Appeal Board (“Board”) regarding the Applicant’s non-refoulement claim upon the Applicant’s earlier request to withdraw the leave application, and/or alternatively an application to re-instate or re-open the leave application.

2.  The Applicant is a 32-year old national of Vietnam who was born biologically male and with the passport showing the sex or gender as male, but has undergone partial sex reassignment from male to female, and has dressed and identified as a female and a male-to-female (“MtF”) transgender person in these proceedings, and has accordingly been so referred to by counsel in the application.  For convenience purpose I shall therefore adopt the same practice to refer to the Applicant as such in this decision.       

3.  The Applicant last arrived in Hong Kong on 23 September 2018 with permission to remain as a visitor up to 30 September 2018 but had overstayed and was arrested by police on 29 November 2018.  After being referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditor over her outstanding debts and/or discriminated and persecuted by the Vietnamese authorities as well as the community for being a MtF transgender. 

4.  The Applicant was born and raised as a male in Phu Tuong Village, Chan Thanh District, Ben Tre Province, Vietnam, but from about the age of 12 she started to feel and act like a female by growing her hair long and resisted menswear. 

5.  After leaving school she worked as a waiter and continued to live with her mother and aunt in her home district, and had planned to undergo sex change operations.

6.  In 2016 she borrowed a loan from a local loan shark for the purposes of starting her own restaurant and for her sex change operation expenses, and in July 2016 she travelled to Thailand for the sex change operation, but after completing her breasts enlargement surgery she became too weak to continue with the remaining sex reassignment operation, and returned to Vietnam.

7.  In November 2016 she opened her own restaurant, and with the business income she then made her loan instalment repayments, but her business did not fare well and the restaurant was closed down one year later in November 2017, and when she became late with her loan repayment, the loan shark sent men to beat her up with wooden sticks and with a warning that she would be killed if she still failed to repay her loan soon. 

8.  One day in February 2018 the loan shark again came with his men to demand payment from the Applicant, and when she begged for further time, the loan shark then demanded that she as a transgender woman should instead work in his massage parlour, and when the Applicant refused, one of the men slashed her back with a knife before fleeing from the scene after some of her neighbours heard the Applicant’s screams.

9.  After discharging from the hospital for treatment to her injury, the Applicant became fearful for her life and fled to Nha Be District, and on 23 September 2018 she departed Vietnam for Hong Kong where she subsequently overstayed and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 22 January 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).       

10.  By a Notice of Decision dated 26 February 2019 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

11.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that she will be harmed or killed by her creditor upon her return to Vietnam as there is no evidence of any real intention of her creditor to seriously harm or kill her other than to put pressure on her to repay her loan, that it was in any event a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, that reliable and objective Country of Origin Information (“COI”) showed that the Vietnamese government have taken progressive steps in advancing its legal framework to protect the rights of transgender people who have also gained recognition from the Vietnamese authorities and the public in general that her fear of being subjected to risk of harassment or discrimination or persecution as a transgender upon her return to Vietnam was too far-fetched and was based on her own speculations only, and that relevant COI also showed that reasonable internal relocation alternatives would be available in Vietnam with a large population of 97 million people spread across a vast territory of more than 310,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Vietnam away from her home district in large cities such as Ha Long City where it would be difficult if not impossible for her to be located.

12.  On 11 March 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 4 July 2019 before the Board during which she gave further evidence and information of her fear of being discriminated and harassed as a transgender person, and also answered questions raised of her claim by the Adjudicator for the Board.  On 20 December 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

13.  In its decision the Board doubted that the Applicant’s claim of fear of harm from her creditor over her outstanding debts was due to the failure of her restaurant business which was in any event a private monetary dispute between them without any official or state involvement that state/police protection would be available to her upon her return to Vietnam as well as reasonable internal relocation for her to move safely to other area away from her home district without any risk of being located by her creditor.

14.  As for her claim of fear of discrimination and harassment due to her being a MtF transgender person, the Board accepted that the Applicant had undergone breast augmentation but found that she willingly did so voluntarily, that there was no suggestion that she had any particular difficulties in this regard or any difficulty opening and operating a restaurant as a transgender person, and that in any event there has been opening up in Vietnam to LGBT rights with the abolition in 2015 of the regulations which prevented same sex marriage, and the proposal to pass a law to allow transgender individuals to receive gender reassignment surgeries and to register under their preferred gender as strong indications of increasing official tolerance of LGBT rights that the Applicant could settle safely in many places in Vietnam that her being LGBT would not be an obstacle to her achieving this purpose, and while it accepted that she is likely to attract rude comments from some people no matter where she lives, there is no evidence that she would be treated particularly badly in Vietnam or of any real chance of her being harmed or persecuted by public official that her claim for non-refoulement protection failed on all applicable grounds.       

15.  On 15 January 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was at that time given in her Form, and in her supporting affirmation of the same date she merely repeated her claim of fear of harm from her creditor over her outstanding loan without putting forth any proper ground for her intended challenge.

16.  However, before her leave application could be dealt with by the Court, the Applicant was arrested by police on 7 March 2020 and was subsequently charged and convicted of the offence of soliciting for an immoral purpose and establishing business while being a person in respect of whom a removal order was in force, and was sentenced to prison for 15 months.

17.  While serving her sentence in Siu Lam Psychiatric Centre (“SLPC”), the Applicant on 17 November 2020 wrote to the Immigration Department stating her wish to return to Vietnam as her problems had already been resolved and that she could safely return to Vietnam, and hence she would like to withdraw her leave application for judicial review, which request was then referred by the Director to this Court for action, and accordingly on 23 December 2020 this Court made an order acceding to the Applicant’s request, and on the basis of her confirmation that her problems which formed the bases for her non-refoulement claim had been resolved, the order accordingly stated that her leave application be dismissed instead of withdrawn.

18.  Less than 6 months later on 18 May 2021, the Applicant through her present solicitors issued a summons for leave to appeal against that dismissal order out of time, and in her 2^nd and 3^rd Affirmations (BD1/6/12-17 and BD1/7/18-28), she explained that from 11 April 2020 to 4 January 2021 she was serving her imprisonment in SLPC during which she as a transgender prisoner was confined in isolation with no meaningful interaction with other detainees which had caused her serious mental distress that she became depressed and suicidal, and in June 2020 when she learnt that upon discharge from prison she was to be detained at the Castle Peak Bay Immigration Centre (“CIC”) under similar solitary confinement that she found herself unable to go through the same ordeal again, which caused her to decide to withdraw her leave application whilst not in her right mind in the hope of returning to Vietnam as soon as possible, but when she was later told of no flights were available for Vietnam due to the Covid-19 pandemic and that meanwhile she was to be confined in solitary at CIC pending her repatriation, she decided to appeal against the order dismissing her leave application as she wants to proceed with the same, for which she believes that there is good prospect in her intended appeal on the basis of the following grounds for her intended challenge of the Court’s decision:

 (1)  That the Court failed to hold that the Board had failed to adequately consider the Applicant’s non-refoulement claim based on risk of harm arising from her transgender status and had committed an error of law and/or had made Wednesbury unreasonable findings and/or failed to give adequate reasons in that regard in that;

(a)   the Board failed to assess and draw necessary conclusions on the questions of whether discrimination and harassment against transgender persons from non-government sources in Vietnam would rise to the level of persecution, and whether the Vietnamese government would be unable to provide protection from such discrimination and harassment;

(b)   the Board erred in law and/or was Wednesbury unreasonable in taking into account that the Applicant was “likely to attract rude comments from some people no matter where he lives and there is no evidence that he would be treated particularly badly in Vietnam” ([107]) as the test for persecution is not whether the Applicant would be more badly treated in Vietnam than elsewhere but whether the discrimination reaches the threshold of severity sufficient to amount to persecution;

(c)   the Board was Wednesbury unreasonable in taking into account an irrelevant consideration that the Applicant “willingly” underwent breast augmentation surgery ([100]) which the Applicant as a transgender person would naturally be expected to undergo as part of the transition to the female sex; and

(d)   the Board failed to take into account material evidence given in her screening interview before the Immigration Department that she “could not find any employment anywhere because he would be prejudiced” and/or failed to give adequate reasons on whether such evidence is accepted and how it impacted on its findings as such evidence is relevant to the question of whether societal discrimination against transgender women in Vietnam amounts to serious restrictions to her livelihood and thus persecution.   

19.  As an alternative to appeal, the Applicant also seeks leave to re-instate or re-open her leave application on the basis that she did not for the reasons stated in her two affirmations as noted above validly withdraw her leave application as she was then mentally distressed and confused, and hence her request to withdraw her leave application should be treated as a nullity, that in the circumstances it was not a proper basis to dismiss her leave application, and that her complaints against the Board’s decision as set out in her proposed grounds of appeal as noted above are reasonably arguable for her intended challenge of the Board’s decision. 

20.  Of the alternative applications of the Applicant, I propose to first deal with the one for leave to appeal out of time which is in my view more straightforward and can be disposed of quickly. 

Leave to Appeal    

21.  This application can be quickly disposed of on the basis that the Applicant has failed to show in her proposed grounds of appeal or otherwise that this Court had erred in law or failed to take into account of relevant matter or was otherwise plainly wrong when acceded to the Applicant’s request to withdraw her leave application which the Court of Appeal would not otherwise interfere with: see Nupur Mst v Director of Immigration [2018] HKCA 524.

22.  Those evidence which the Applicant now relies on as to her mental state or condition at the time when she made her request to withdraw her leave application as stated in her two affirmations were not then available or presented to the Court, and hence cannot in my view be regarded as the relevant matters which the Court could be said to have failed to take into account in dismissing her leave application, and that it was also within the Court’s jurisdiction in the circumstances to bring formal finality to the proceedings by dismissing instead of withdrawing her leave application. 

23.  As such and in the absence of any error of law in the Court’s decision to dismiss the leave application at her request or that it was plainly wrong to do so clearly shown by the Applicant, I do not find any prospect of success in her intended appeal, and accordingly dismiss her application for leave to appeal out of time.

Re-instate/Re-open the Leave Application      

24.  For this alternative application, Mr Geoffrey Yeung of Counsel who appeared for the Applicant on pro bono basis submits that the Court has jurisdiction to reinstate applications for leave to apply for judicial review previously withdrawn before there had been any final determination of the merits of such applications so as to avoid any real injustice, or where the circumstances are exceptional as in the Applicant’s case. 

25.  It is submitted that while the interest of bringing finality to proceedings referred to in Das Purnima Rani [2019] HKCA 669 which applies to appeals before the Board also applies equally to applications for leave to apply for judicial review before the High Court, there is a distinction between the Board and the High Court in that the former is a creature of statute and has no inherent jurisdiction, whereas the latter does have inherent jurisdiction to reinstate or re-open cases in judicial review applications.

26.  Mr Yeung therefore submits that the High Court’s inherent jurisdiction to reinstate leave applications may be exercised not only where the request to withdraw had been a “nullity”, but also where it is necessary to do so in order to avoid real injustice given that there had been no determination on the merits of the Applicant’s case, more so in her exceptional circumstances as indicated in her affirmations.      

27.  As noted above, the Applicant in her 2^nd Affirmations explained that it was her lengthy solitary confinement at SLPC that caused her mental distress and confusion, and that the fear of such ordeal was to continue at CIC had driven her to decide to withdraw her leave application so as to return to her home country, but when she was later told of no flights were available for her to return to Vietnam due to the Covid-19 pandemic, she could not stand any further solitary confinement at CIC that she therefore changed her mind about proceeding with her intended challenge of the Board’s decision, as she elaborated in the affirmation (BD 1/6/13-14) as follows:

“4.  On 7 March 2020, I was arrested and subsequently convicted of soliciting for an immoral purpose and establishing business while being a person in respect of whom a removal order is in force.  As a transgender woman, I started serving my sentence in Siu Lam Psychiatric Centre (“SLPS”) on or around 11 March 2020.  I was solitarily confined for the whole period of my sentence until 4 January 2021.

5.  The almost 10-month solitary confinement caused me great mental distress.  As I spoke very limited English and Chinese, I did not understand why I was placed in solitary confinement or why things were happening to me the way they did in the absence of a Vietnamese interpreter.  I had nobody to speak to or turn to.  I have been suffering from insomnia, which has deteriorated since my incarceration.  I tried to seek medical assistance in SLPS, but the handling doctor was indifferent to my situation.  I was depressed and even attempted to commit suicide.  I was also distraught to learn that I would likely continue to be put in solitary confinement in the Castle Peak Bay Immigration Centre (“CIC”) even after serving my sentence.  It was under such an extreme medical condition that I considered going back to Vietnam despite my fear of being harmed by the persecutors.  The solitude, anxiety and anguish arising from being solitarily confined in both SLPS and CIC was unbearable to me.

6.  Given my extremely limited English ability, I asked my friend Amy, who knows English, to write a letter to the Immigration Department on my behalf to request for my return to Vietnam …

7.  On 4 January 2021, I finished my sentence and was transferred to CIC.  I was continuously detained in a single cell due to my gender identity.  Here, I was informed by my case officer that due to the on-going COVID-19 situation, there would be no flight for me to return to Vietnam.  I was frustrated and feared that I would be indefinitely detained in CIC … out of my desperation to end the solitary confinement, I asked my case officer if there were any other ways for me to wait outside CIC.  I understand from my case officer that I would have to first apply to the Court to cancel my earlier request for returning to Vietnam …

8.  … I understand that my application for leave for judicial review has been dismissed by Deputy High Court Judge Bruno Chan on 23 December 2020.  It was only then that I knew the 14-day time limit to appeal against the Decision has passed.  I instructed my solicitors that since I still fear returning to Vietnam, I would like to continue my application for non-refoulement protection and pursue the judicial review proceedings.”   

28.  On 15 July 2021 the Applicant filed her 3^rd Affirmation (BD 1/7/18-28) providing more details of her mental state and condition caused by her solitary confinement as well as the lack of hormonal treatments which she claimed to require for her transgender treatments, and which had contributed to her worsening mental condition and confusion, as corroborated by various documents exhibited to her affirmation, including copies of her incident log and medical records at CIC, and that in one of her letters to the Director dated 16 February 2021, she pleaded to be allowed to return to Vietnam so as to put an end to her solitary confinement or else she would commit suicide (BD 2/27/205).       

29.  Mr Yeung submits that what the Applicant said about her detention in solitude in prison is in fact consistent with the policy of the Correctional Service Department on transgender prisoners, as set out in the case of Navarro Luigi Recasa v Commissioner for Correctional Service [2018] 4 HKLRD 38 ([20]-[26]), in that for a “male-to-female” transgender prisoner who has not completed sex reassignment surgeries or changed his identification documents, as in the Applicant’s case, would only be arranged to stay with other “male-to-female” transgender prisoners, if any, in the same situation in daytime and independently detained at night, but as there was no other transgender prisoner in the same situation during her imprisonment at SLPC, the Applicant was practically in solitary confinement during her entire stay there.

30.  While the Applicant has not produced any medical report of her mental state at the time of her request to withdraw her leave application when she was then not legally represented, what she has described about her conditions seem to be consistent with documented potential harmful effects of solitary confinement on mental health such as those reported in Istanbul Statement on the Use and Effects of Solitary Confinement which has been endorsed and annexed to the Interim Report of the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Persecution, UN Doc A/63/175, 28 July 2008, and in which it was stated at p.23:

“The effects of solitary confinement

It has been convincingly documented on numerous occasions that solitary confinement may cause serious psychological and sometimes physiological ill effects. Research suggests that between one third and as many as 90 per cent of prisoners’ experience adverse symptoms in solitary confinement. A long list of symptoms ranging from insomnia and confusion to hallucinations and psychosis have been documented. Negative health effects can occur only a few days in solitary confinement, and the health risks rise with each additional day spent in such conditions.

Individuals may react to solitary confinement differently. Still, a significant number of individuals will experience serious health problems regardless of the specific conditions, regardless of time and place, and regardless of pre-existing personal factors. The central harmful feature of solitary confinement is that it reduces meaningful social contact to a level of social and psychological stimulus that many will experience as insufficient to sustain health and well-being.

The use of solitary confinement in remand prisons carries with it another harmful dimension since the detrimental effects will often create a de facto situation of psychological pressure which can influence the pre-trial detainees to plead guilty.

 When the element of psychological pressure is used on purpose as part of isolation regimes such practice become coercive and can amount to torture.”

31.  The Interim report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, UN Dec A/66/268, 5 August 2011 also reported on similar psychological and physiological effects of solitary confinement:

“62.  Negative health effects can occur after only a few days in solitary confinement, and the health risks rise with each additional day spent in such conditions.  Experts who have examined the impact of solitary confinement have found three common elements that are inherently present in solitary confinement – social isolation, minimum environmental stimulation and “minimum opportunity for social interaction”.  Research further shows that solitary confinement appears to cause “psychotic disturbances,” a syndrome that has been described as “prison psychosis”.  Symptoms can include anxiety, depression, anger, cognitive disturbances, perceptual distortions, paranoia and psychosis and self-harm (see annex for a comprehensive list of symptoms).

63. Some individuals experience discrete symptoms while others experience a “severe exacerbation of a previously existing mental condition or the appearance of a mental illness where none had been observed before.” Still, a significant number of individuals will experience serious health problems regardless of the specific conditions, regardless of time and place, and regardless of pre-existing personal factors.”

32.  In addition to the distress and confusion being caused by solitary confinement in her case, the Applicant also referred to her situation being exacerbated by the fact that she was not given hormonal treatment which she used to receive in the past until later in May 2021, as corroborated by her medical records exhibited to her 3^rd Affirmation (BD 2/33/237-240).

33.  The adverse effects of withdrawal of hormonal treatment on a transgender person were recognized in Navarro, in which the Court held that the delayed provision of hormones by the Correctional Services Department (“CSD”) to a MtF transgender prisoner was Wednesbury unreasonable, as Au J (as he then was) observed at §301 of the judgment:

“ …

(4) In the premises, medical officers at the VPU attending R should at least be generally familiar with and sensitive to the potential adverse effects that would be caused to R as a MtF transgender without the HRT. It is not disputed that the withdrawal of HRT ordinarily would result in (a) the reappearance of male bodily features such as the growing body hair, the roughing of skin texture, the appearance of the Adam’s apple and the increased deepness of her voice, and (b) potential adverse psychological stress on R caused in turn by these physical changes.

(5) As emphasized by Mr Deng (and supported by Dr Winter’s evidence), it would not be too difficult to understand and appreciate the kind of stress a transgender person like R would have had in being visited with the re-appearance of male physical features.  For seven years, she had identified herself and been living as a female, bearing female physical features (including soft and hairless skin, gentle voice and without the appearance of an Adam’s apple)…”        

34.  Mr Yeung has stressed that it is not the Applicant’s intention to assert that her solitary confinement at SLPI had been a violation of her BOR 3 rights, but just to demonstrate that what she said is indeed credible and that the severity of her mental health situation during her unusual detention conditions should not be underestimated, that it was indeed a highly unusual and tormenting situation of a transgender prisoner, and that the Applicant who was then unrepresented had evidently been in a state of confusion and serious mental distress when she made her previous representations to the Court to withdraw her application, and now with the benefit of legal assistance and with such new information made known to the Court, the Applicant ought not be barred from pursuing her leave application, especially so given the gravity of the subject matter of these proceedings.      

35.  The evidence before the Court indeed show that when the Applicant made her request to withdraw her leave application so as to return to Vietnam in November 2020, she had been in solitary confinement at SLPC for some 7 months, and any psychological effects which may have been so caused within such a period could have been tremendous if not devastating by the standard described in those reports referred to above, and which appeared to have already manifested when the Applicant first raised her request to return to Vietnam on 27 June 2020 when she wrote to the Director as follows (BD 2/18/172):

“ … Because I was a ladyboy and cannot stay in the male or female section at CIC, can you please help me and let me return to Vietnam as soon as possible after my release because I am so stressed and cannot handle to stay in detention any longer.”

36.  Her medical progress and treatment records at SLPC also show that during the first month of her imprisonment, the Applicant did on 22 April 2020 complain of headache and also requested for female hormonal treatment, and was told on 28 April 2020 that hormonal treatment would be given once event three months (BD 2/33/237-238).   

37.  Furthermore, while it is true that in her 3 letters to the Director in 2020 requesting to withdraw her leave application so that she could return to Vietnam, the Applicant stated that her problem had already been resolved but without provided any explanation or any further details as to how it had been so (B2 18-20/175), and based on my experience with this type of applications where some detainees have been known to make the same or similar statement without actually meant it in their request to withdraw their application so as to just to get out of their detention or confinement, I am unable to exclude that possibility in the situation of the Applicant at the material time.       

38.  In the circumstances, and on the basis of the evidence and information before me, I am prepared to give the Applicant the benefit of the doubt and accept that when she requested to withdraw her application, she was not in her right mind and hence it was not a valid withdrawal, and given the fact that no determination of her leave application had been made and the gravity of the consequences of applications of this nature, I allow her request to re-instate her leave application for consideration, and proceed to consider her complaints of the Board’s decision as noted above in her proposed grounds of appeal, which can in fact be all considered together and summarized as follows:

-     that the Board failed to properly assess including adequate COI whether discrimination and harassment against transgender women from non-government sources in Vietnam would rise to the level of persecution, and whether the Vietnamese government would be able to provide protection from such discrimination and harassment, and in arriving at its conclusion that the Applicant failed to establish such risk that it erred in law and/or was Wednesbury unreasonable in taking into account of irrelevant consideration of various conducts of the Applicant and/or failed to take into account material evidence and/or failed to give adequate reasons for its decision. 

Grounds for Judicial Review: Persecution from Non-Government Sources

39.  It would be relevant to first set out the Board’s consideration and assessment of the evidence of the Applicant’s claim as regard such risk in its decision:

“100. The Applicant stated, in the appeal, that after the breast augmentation surgery had been completed and he returned to Vietnam, he was jeered and mocked on the street. We discussed this at the hearing and the Appellant conceded that not everyone behaved this way. In any event, the Appellant willingly underwent the breast augmentation surgery voluntarily and, in terms of the written submission and NCF, there was no suggestion that the Appellant had any particular difficulties in this regard, nor that he would have any difficulties opening and operating a restaurant as a transgender person.

101. There is considerable evidence of an opening up in Vietnam to LGBT rights. In 2015 regulations that prevented same sex marriage were abolished and at the end of 2015 Vietnam passed a law allowing trans individuals receive gender reassignment surgery and to register under their preferred gender, something that may have encouraged the Appellant to have SRS. It was reported in May 2018 by the Voice of Vietnam, the national radio broadcaster, that “The LGBT community is excited for more big changes in the next few years as the new law on Gender Change is being crafted by the Ministry of Health (MoH) to protect the rights of transgender people.

The Law is set to be submitted to parliament for review in 2019 at the latest.

“The bill stipulates how to identify a person whose gender identity is different from his/her assigned sex at birth through psychological evaluations… After that, doctors are allowed to perform medical interventions, such as hormone therapy or breast and genital surgeries,” said Nguyen Huy Quang, director of the MoH’s department of legal affairs.

“If passed, the bill will provide a basic and humane legal framework … for transgender people to live true to themselves and set their bodies free,” he said.

“It’s a work in progress and I am pleased to see the efforts that are going in to considering the different aspects of the bill on protecting the rights of transgender people in healthcare.” Ambassador of Canada to Vietnam Ping Kitnikone told Vietnam News Agency.”

102. While there is no evidence that the law has been passed, the intention is clear, and coming from an official mouthpiece is a strong indication of increasing official tolerance of LGBT rights, while it is likely that case that LGBT people are more likely to be frowned upon in more rural areas.

103.  In conclusion, I consider that the Appellant’s claims are unreliable and inconsistent.  I consider that the claim adopted, that of the NCF, is the most implausible claim and is not credible because I do not believe the story about the large loan and the opening of a restaurant.  In the event that the Appellant has a problem with loan shark, it is local in nature, that the Appellant could resettle safely in many of the towns and cities of Vietnam and that his being LGBT would not be an obstacle to his achieving this purpose.”

40.  The Board then cited HJ (Iran) v Secretary of State for the Home Department[2011] 1 AC 596 at §82 as the proper approach to assessing whether a LGBT person would be subject to persecution, and proceeded to find as follows regarding the Applicant’s claim under persecution risk:

“105. Accepting that the Appellant is part of a particular social group, in his case LGBT/Transgender, it was necessary also to establish whether the Appellant may be subject to persecution in Vietnam should he be refouled. The test to be applied to this was set out in HJ (Iran) v Secretary of State for the Home Department at paragraph 82, which reads as follows …

106. I consider that it is inconceivable given his entirely feminine disposition and breast augmentation that the Appellant could live discreetly. He has no choice but to live openly as an LGBT person. The next step is to consider whether the Appellant would be liable to persecution in Vietnam. It is clear from the evidence referred to that the authorities in Vietnam do not persecute the LGBT community. I would add that the Appellant voluntarily undertook SRS and returned to Vietnam, In terms of his NCF, he claimed that he was sufficiently confident to open a restaurant in a transgender state and to attract a private investor.

107. The Appellant did not make an issue of his transgender status until late in his NCF when he stated that he would be subject to constant discrimination in a conservative country like Vietnam and then in his appeal when he belatedly claimed that after his operation he was singled out for mocking comments. At the hearing he confirmed this but I conclude that the Appellant is likely to attract rude comments from some people no matter where he lives and there is no evidence that he would be treated particularly badly in Vietnam.

108.  There is no evidence of a real chance that the Appellant would be killed, harmed or tortured by a public official.  The Appellant’s claim under this heading therefore fails.”     

41.  The “heading” referred to at the conclusion of that last paragraph is in fact for Torture Risk, but for Persecution Risk, the Board simply just stated that the “Applicant has not provided any compelling evidence of persecution under any of the reasons under the Convention and therefore the claim under this ground also fails.” (BD 1/15/151).

42.  Mr Yeung submits for the Applicant that the Board committed an error in failing to assess whether discrimination from non-government sources may sufficiently reach the level of persecution, and whether the government may be unable to provide protection from such persecution, or alternatively that the Board failed to give adequate reasons in this regard or was Wednesbury unreasonable in its conclusion that there was no persecution risk without sufficient evidence on these issues. 

43.  While the Board did in the earlier part of its decision remind itself that the threat of harm for the purposes of persecution “need not arise from the government directly but can be perpetrated by non-government entities.  In those circumstances, it may be enough that the government is unable or unwilling to provide protection from persecution” ([18]), Mr Yeung submits that it failed to fully apply the law set out in Horvath v Secretary of Security of the Home Department [2002] 1 AC 489, as it was not sufficient to dispose of the Applicant’s claim based on transgender status because persecution may be perpetrated by non-government entities, and if the Vietnamese government is unable (even if willingly) to provide protection, that would still constitute persecution, and failing to answer these two questions means, Mr Yeung submits, that there is a viable route to establish a persecution claim which the Board had not considered, and that is a material error of law that goes to whether non-refoulement protection ought to be granted or not.

44.  Insofar as the Board in its decision relied on the lack of evidence of persecution from the Applicant, Mr Yeung submits that the Board failed to appreciate the principle laid down in MA (Somalia) v Secretary of Security of the Home Department [2011] 2 All ER 65 (UKSC) at §33 that in cases even in the absence of credible evidence from the applicant himself or herself, relevant and solid COI can still be sufficient to found a claim, and hence it was incumbent on the Board to access adequate COI in order to properly assess the Applicant’s claim under high standards of fairness, but that it had not directed its mind or given any answer to the two questions raised in §43 above, which were necessary to address in order to dispose of the Applicant’s claim arising out of her transgender status.      

45.  On this Mr Yeung submits that the Board had not cited or discussed any COI to adequate answer these two questions, as there was no COI discussed on the level of discrimination and harassment that transgender people face in Vietnam, nor had it addressed comments in the COI before the Board which may go to support the Applicant’s claim on these two questions, as borne out by those COI quoted in the decision, and in failing to do so, the Board had erred in law or was Wednesbury unreasonable in making its finding on persecution risk without having enquired into and drawn conclusions on these questions, or that it was a failure to give adequate reasons on persecution risk without answering these questions.

46.  Furthermore, Mr Yeung argues that whether the Applicant is “likely to attract rude comments from some people ono matter where he lives and there is no evidence that he would be treated particularly badly in Vietnam” ([107]) is patently not the test for persecution, as it is not a relative test of whether the Applicant would be treated more harshly in Vietnam than in other places, but rather that the test is whether the mistreatment in Vietnam crosses a threshold of severity sufficient to amount to persecution, which is therefore either an error of law on the part of the Board as to the test of persecution, or a Wednesbury unreasonable basis by the Board for finding against the Applicant on her risk of harm arising from her transgender status.

47.  Mr Yeung further argues that it is difficult to see why it is relevant for the Board to note that the Applicant “willingly” underwent breast augmentation surgery since it is a natural course of conduct for a transgender person in the Applicant’s position if she is to live openly as a transgender person, and hence it is Wednesbury unreasonable for the Board to take this factor into account, nor had it considered or given adequate reasons on material evidence on whether societal discrimination in Vietnam against transgender women like the Applicant is so serious as to amount to persecution, and that there is no indication in the Board’s decision as to whether the Applicant’s evidence in the Record of Screening Interview before the Director that she “could not find any employment anywhere” because of her transgender status was accepted or not by the Board, and if societal discrimination rises to the level that the Applicant could not find any employment anywhere, then it could constitute persecution.

48.  Taking on that last point raised by Mr Yeung, according to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (2019), discrimination and harassment can in principle amount to persecution, as it explained their relationship at p21:

“51.  There is no universally accepted definition of “persecution”, and various attempts to formulate such a definition have met with little success.  From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution.  Other serious violations of human rights – for the same reasons – would also constitute persecution.

52.  Whether other prejudicial actions or threats would amount to persecution will depend on the circumstances of each case, including the subjective element to which reference has been made in the preceding paragraphs.  The subjective character of fear of persecution requires an evaluation of the opinions and feelings of the person concerned.  It is also in the light of such opinions and feelings that any actual or anticipated measures against him must necessarily be viewed.  Due to variations in the psychological make-up of individuals and in the circumstances of each case, interpretations of what amounts to persecution are bound to vary.

53.  In addition, an applicant may have been subjected to various measures not in themselves amounting to persecution (e.g.  discrimination in different forms), in some cases combined with other adverse factors (e.g.  general atmosphere of insecurity in the country of origin).  In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on “cumulative grounds”.  Needless to say, it is not possible to lay down a general rule as to what cumulative reasons can give rise to a valid claim to refugee status.  This will necessarily depend on all the circumstances, including the particular geographical, historical and ethnological context.    

54.  Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who received less favourable treatment as a result of such differences are not necessarily victims of persecution.  It is only in certain circumstances that discrimination will amount to persecution.  This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g.  serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities.

55.  Where measures of discrimination are, in themselves, not of a serious character, they may nevertheless give rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of apprehension and insecurity as regards his future existence.  Whether or not such measures of discrimination in themselves amount to persecution must be determined in the light of all the circumstances.  A claim to fear of persecution will of course be stronger where a person has been the victim of a number of discriminatory measures of this type and where there is thus a cumulative element involved.”

49.  The Handbook also said this about agents of persecution at p22:

“65. Persecution is normally related to action by the authorities of a country. It may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned. A case in point may be religious intolerance, amounting to persecution, in a country otherwise secular, but where sizable fractions of the population do not respect the religious beliefs of their neighbours. Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.”

50.  Which thus brings me back to the main complaint of the Applicant: That the Board had failed to assess whether discrimination from non-governmental sources may have sufficiently reached the level of persecution, and if so whether the government may be unwilling or unable to provide protection from such persecution in the Applicant’s case.   

51.  While the Board did as noted above accept that the threat of harm for the purpose of persecution needs not arise from the government directly but can be perpetrated by non-government entities, in which case it would be necessary to find whether the Applicant had a well-founded fear of being persecuted, and if so that she was unable or owing to that well-founded fear unwilling to avail herself of the protection of the Vietnamese authorities, and in determining whether there is such sufficient protection against persecution, it is relevant to find whether there is in that country a system of criminal law which makes such acts of persecution punishable and a reasonable willingness to enforce that law on the part of the law enforcement agencies, as Lord Hope of Craighead held in the House of Lords’ case of Horvath v Secretary of State for the Home Department [2002] 1 AC 489 at p501A

“Where the allegation is of persecution by non-state agents, the sufficiency of state protection is relevant to a consideration whether each of the two tests – the “fear” test and the “protection” test – is satisfied.  The proper starting point, once the tribunal is satisfied that the applicant has a genuine and well-founded fear of serious violence or ill-treatment for a Convention reason, is to consider whether what he fears is “persecution” within the meaning of the Convention.  At that stage the question whether the state is able and willing to afford protection is put directly in issue by a holistic approach to the definition which is based on the principle of surrogacy…”   

52.  Lord Clyde sitting in the same Court went on to elaborate further as to the level of protection which is to be expected of the home state at 510F:

“Certainly no one would be entitled to an absolutely guaranteed immunity. That would be beyond any realistic practical expectation. Moreover it is relevant to note that in Osman v United Kingdom (1998) 29 EHRR 245 the European Court of Human Rights recognized that account should be taken of the operational responsibilities and the constraints on the provision of police protection and accordingly the obligation to protect must not be so interpreted as to impose an impossible or disproportionate burden upon the authorities. At the least, as is noted in condition (iii) in rule 334 which I have quoted earlier, the person must be able to show that if he is not granted asylum he would be required to go to a country where his life and freedom would be threatened. There must be in place a system of domestic protection and machinery for the detection, protection and punishment of actings contrary to the purposes which the Convention requires to have protected. More importantly there must be an ability and a readiness to operate that machinery. But precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case.”

53.  In the Applicant’s case, while the Board did consider and found no evidence of persecution perpetrated by the authorities in Vietnam against the LGBT community, it did not appear to have taken proper or sufficient consideration of the Applicant’s claim of risk of persecution based on her transgender status from non-government entities, or whether on the basis of relevant COI that the Vietnamese government may be unable or unwilling to provide protection to transgender women such as the Applicant against such persecution from non-state agencies as noted above. 

54.  Accordingly, and for the reasons given, I agree that it is reasonably arguable that the Board (i) failed to properly and/or adequately assess including relevant COI whether the discrimination and harassment against transgender women from non-government sources in Vietnam would amount to persecution, and whether the Vietnamese government would be able to provide protection from such discrimination and harassment; and (ii) in arriving at its conclusion that the Applicant failed to establish persecution risk that it erred in law and/or was Wednesbury unreasonable in taking into account of irrelevant consideration of various conducts of the Applicant and/or failed to take into account material evidence and/or failed to give adequate reasons for its decision; thus meeting the threshold for leave to be granted to apply for judicial review as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.            

55.  In the premises I grant leave to the Applicant to apply for judicial review of the Board’s decision on the grounds as stated above, and in accordance with Order 53 rule 5 of the High Court, Cap 4A, I direct that the Applicant shall file an originating summons within 14 days from the date of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and on the Director as interested party.     

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1