TRAN VAN TIEN and Others v. THE REFUGEE STATUS REVIEW BOARD

1997 M.P. No. 287

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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INTRODUCTION

1. The 14 Applicants are ethnic Chinese from Ha Tuyen Province in North Vietnam. They claim that in 1979 they were forcibly removed from their homes and confined in concentration areas reserved for ethnic Chinese. They allege that while in those areas their civil liberties were disregarded, they were subjected to harsh and arbitrary laws, and they were forced to live in conditions of isolation, poverty and squalor. Eventually, they managed to escape to Hong Kong. Once in Hong Kong, they applied for refugee status, but their applications were refused.

2. In due course, a total of 120 ethnic Chinese from Ha Tuyen Province commenced proceedings. They challenged the various decisions that they had not established a well-founded fear of persecution, and were therefore not refugees within the meaning of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol to it ("the 1951 Convention"). However, before the case was heard, a number of the 120 Applicants were offered the opportunity of having their claims for refugee status reconsidered by the Refugee Status Review Board ("the Board"). They accepted that offer. They included the 14 present Applicants. Accordingly, their challenge to the earlier decisions refusing them refugee status was never adjudicated upon.

3. The Board reconsidered the cases of the 14 Applicants towards the end of 1996. The Board again decided that they had not established a well-founded fear of persecution, and were therefore not refugees. It is those decisions which are challenged on this application for judicial review. I trust that I will be forgiven for referring to them for convenience as A1-A14.

THE PREVIOUS PROCEEDINGS

4. A number of issues were addressed in the previous proceedings. The proceedings were Tran Van Tien v. The Director of Immigration (HCMP 3644/95) ("the first Ha Tuyen case"). The issues addressed included issues relating to the Board's approach to its task (e.g. the proper test of refugee status and the criteria to be taken into account) as well as issues relating to the circumstances of ethnic Chinese from Ha Tuyen Province (e.g. the circumstances in which "internal exile" and being forced to live as subsistence farmers could amount to persecution). An appeal from the court's judgment at first instance was dismissed (CA 187/96), and an application for special leave to appeal to the Privy Council was refused. Mr. Paul Harris for the Applicants therefore accepts that many of the broader issues canvassed in the Notice of Application (which was filed when the application for special leave was still pending) cannot be pursued. The application is now a narrow one, focusing on the reasoning of the Board only in the cases of the 14 Applicants.

THE BOARD'S APPROACH

5. The 14 Applicants comprise three families, a single man and a single woman. They constitute five different cases. The Board's approach in each of the five cases was the same. The Board decided that the Applicants in each case had suffered a measure of persecution prior to their departure from Vietnam. However, the Board also decided that the conditions which they will face on their return to Vietnam will be very different. Balancing the extent of the persecution which they had endured in the past against the changes which had taken place in Vietnam in the treatment of ethnic Chinese in the meantime, the Board concluded in each case that the Applicants no longer had a well-founded fear they would be persecuted for the only Convention reason which was applicable to their cases, namely their Chinese ethnicity.

THE CHANGE IN ATTITUDE TOWARDS ETHNIC CHINESE

6. Fundamental changes in an asylum-seeker's country of origin can remove the basis of any fear of persecution. That is recognised in one of the cessation clauses in the Convention (Art.1C(5)) and in para.135 of the Handbook on Procedures and Criteria for Determining Refugee Status issued by the office of the UNHCR ("the Handbook"). The Board based its view that the ethnic Chinese were no longer a discriminated and ill-treated section of Vietnamese society on a number of factors:

(i) The Government of Vietnam had publicly apologised for its ill-treatment of its ethnic Chinese citizens in the past.

(ii) There was evidence that the conditions of ethnic Chinese living in Vietnam have improved nationally. The Board did not identify what this evidence was, but it was plainly based on the various materials available to the members of the Board referred to in the interlocutory ruling of 3rd June 1996 in the first Ha Tuyen case, and which enabled the Chairman of the Board to depose in that case that the ethnic Chinese had by then "largely regained their position in society".

(iii) There was evidence of a significant improvement in conditions of ethnic Chinese living in Ha Tuyen Province. That evidence focused in particular on those who had returned there following their repatriation back to Vietnam. The evidence consisted of a report from a UNHCR monitoring team which had visited Ha Tuyen Province in 1996, and a report by Jeffrey Wong, an attaché at the British Embassy in Hanoi, in March 1996. Mr. Harris contended that Mr. Wong's report was unreliable because it referred to the absence of complaints about the treatment of ethnic Chinese "since the late eighties", whereas it is plain from the Applicants' own accounts of their treatment (to the extent that the Board accepted them as true) that their ill-treatment continued until late 1990 when the majority of them left Vietnam. For my part, I do not think that that undermines Mr. Wong's view of conditions in 1996, and the Board cannot be criticised for giving the weight it did to his report.

7. There is no basis on which the Board's view about prevailing attitudes in Vietnam towards ethnic Chinese is susceptible to legal challenge. The Board's view was one which it was open to the Board to reach on the material which it had. Broadly speaking, that was accepted by Mr. Harris. His argument was that the Board had, in all five cases, seriously under-estimated the persecution to which the Applicants had been subjected before they left Vietnam, and that had the Board appreciated the full extent of the persecution they had encountered, the Board's conclusion could have been different in three of the cases, and would have been different in the other two.

GENERAL CRITICISMS OF THE BOARD

8. Although it will be necessary to consider the five cases separately, a number of general criticisms are made of the Board's approach to the Applicants' cases. I propose to deal with two of them here.

(i) The Sino-Vietnamese War. It is claimed that the Board found that the only persecution which the Applicants had experienced was in the immediate aftermath of the Sino-Vietnamese War which lasted for no more than a couple of months at the beginning of 1979. Two passages, which appear in the Board's reasons for all five cases, are said to support that view of what the Board found. The first passage reads:

"While accepting that the Applicants faced persecution in time of war 17 years ago, the Board's task in 1996 is to determine whether, if returned to Vietnam today, the Applicants have a well founded fear of persecution." (My emphasis.)

The second passage reads:

"This Board does not doubt they suffered in the past war-time situation, but they are returning to a different piece-time situation." (My emphasis.)

Mr. Harris' point is that the Board's finding that the persecution of the Applicants lasted for so short a time was irrational. If it was persecution to require them to move from their homes to a village nearby reserved for ethnic Chinese, it was persecution to confine them there for 10 years and to require them to eke out a living as subsistence farmers.

9. I cannot go along with this criticism of the Board. I do not think that the references to the War in the two passages relied on by Mr. Harris show that the Board was limiting its finding of persecution to that time. The first passage merely related to the events of 1979. In none of the five cases did the passage purport to limit the finding of persecution to the events of 1979 alone. In the second passage, the Board was merely seeking to contrast the period in the past when ethnic Chinese in general were ill-treated and the present when they are not. It may be that the Board did not find that being forced to live as peasant farmers amounted to persecution, but what the Board did find was that the circumstances of ethnic Chinese living in concentration areas in Ha Tuyen Province had been "harsh", that features of their existence had continued to amount to persecution, and that they had been ill-treated and racially discriminated in a number of serious respects. Ultimately, it did not really matter whether that ill-treatment and discrimination amounted to persecution. What mattered was whether the nature of their ill-treatment and discrimination in the past (whatever label was applied to it) gave them a well-founded fear of persecution because of their Chinese ethnicity in modern-day Vietnam.

(ii) Punishment for escaping. In a number of the cases, the Applicants had attempted to flee Vietnam on an earlier occasion. They had been caught. Attempting to leave Vietnam without permission is a criminal offence under the Vietnamese Criminal Code. It is, I think, plain that it was for that reason that the Board did not regard the punishment which they had received as amounting to persecution. The criticism of the Board is that the fact that leaving Vietnam without permission was a criminal offence did not prevent the Applicants' punishment for it from being capable of amounting to persecution. The only reason why the Applicants broke Vietnamese law was to escape the persecution, ill-treatment and discrimination to which they were being subjected. To punish them for that was adding insult to injury.

10. I agree with that criticism of the Board. In my view, the Board did not address the question whether the punishment of the Applicants for attempting to leave Vietnam without permission could have amounted to persecution on the footing that all that the Applicants had been doing was attempting to escape from persecution, ill-treatment and discrimination. What the impact of that error was on the individual cases of the Applicants is a matter which I shall address when I come to their individual cases.

TRAN VAN TIEN (A1)

11. A1 was born in December 1952 in Ha Tuyen Province. During the 1970s, he worked as a carter in a co-operative pulling buffaloes. He married in 1975, and his two sons were born in 1977 and 1978. His wife and two sons are A2-A4. His life prior to 1979 had been unremarkable. However, in July 1979, A1-A4 and A1's sister were forced to move from their home to a village about 10 kms. away, and their previous home was confiscated. Until A1-A4 managed to escape to Hong Kong at the end of 1990, that was where they continued to live.

12. Five criticisms are made of the Board's decision relating to A1-A4:

(i) The buffalo incident. In September 1987, A1 was accused of attempting to steal a buffalo. He was beaten up by the militia. When he and his sister wrote to the local authorities to complain about his treatment, they were ignored. Of this incident, the Board said:

"The beating is to be deplored and was the unauthorised act of individual officers acting outwith their duties."

The criticism of the Board is that the fact that the treatment of A1 had not been officially sanctioned did not prevent it from being capable of amounting to persecution. As was said in the first Ha Tuyen case:

"If as a result of the policy to treat ethnic Chinese in a discriminatory way local officials felt free to take the law into their own hands, the authorities could not wash their hands of the matter by saying that the officials were not entitled to behave as they did."

That is, in effect, what para.65 of the Handbook provides:

"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 ... 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."

13. I believe that this criticism of the Board misses the mark. I do not think that the Board was saying that the treatment of A1 could not amount to persecution because it had not been officially sanctioned. What the Board added was:

"This remote event cannot substantiate a well founded fear of persecution in 1996."

In other words, all that the Board was saying was that A1's ill-treatment at the hands of the authorities in 1987 was too remote an event to justify A1's fear that he and his family would be persecuted in modern-day Vietnam because of their Chinese ethnicity.

(ii) Punishment for escaping. In March 1989, A1 and his family attempted to flee Vietnam. They were caught. As a result, A1 was detained for six months. For the reason I have already given, the Board erred in not considering whether this was capable of amounting to persecution.

(iii) Change of land. Following A1's release from detention, A1 had to give up most of the land he was farming, and he was given new land to farm. The Board found that this did not amount to persecution. Two criticisms are made of the Board. First, it is said that the Board wrongly thought that A1 had been allowed to retain part of the original land on which to grow crops for his own use. The Board is said to have ignored the fact that A1 had said in his screening interview that his farmland "together with the crops on it" were confiscated. I reject this criticism of the Board. When interviewed by the Board, A1 was asked whether he "could keep some land to grow sweet potato, maize and cassava". He replied: "Yes". Secondly, it is said that the Board should have found that the requirement to give up the original land and to farm new land amounted to persecution. What he was being required to do was to cultivate a different crop for the authorities for no salary. It is said that this was nothing short of forced labour. For my part, I cannot characterise the finding of the Board that this did not amount to persecution as irrational. He was being paid - albeit in kind by being provided with crops, and A1 was receiving tax concessions for the crops he continued to grow on the original land.

(iv) The accusation of arson. In November 1990, A1 was arrested on suspicion of arson. He was detained and questioned about it. He had not been charged with any offence by the time he escaped from custody the following month. He was never caught because within a week or two he had managed to escape from Vietnam with his family. The Board found that A1's arrest and detention were "not connected to the refugee convention but concern[ed] normal police measures to investigate a crime, the destruction of state property". It is said that this misses the point. The crime which the police were investigating may have been a non-political crime, but A1 was treated in the way he was because he was Chinese. I think that there is some force in this criticism, but the sting of it is removed to a great extent by the Board's other finding in this context:

"Certainly, in 1996, the Applicant can have no well founded fear for a Convention reason over a detention and questioning over a common law crime 6 years in the past." (My emphasis.)

The Convention reason can only have been his Chinese ethnicity. Accordingly, the Board was finding that if on his return to Vietnam the investigation into his responsibility for the arson will be revived, that will not be because of his Chinese ethnicity.

(v) The death of A1's sister. A1's sister was also arrested and detained in connection with the arson. However, A1 claimed that while in detention she had been severely beaten. She died from the injuries she had received a week or so after her release. She had been refused medical treatment for her injuries. The Board found that if A1's sister had been treated in that way she had been the victim of persecution, but that her death did not make A1 "a Convention refugee". It is said that if her appalling treatment was the result of her Chinese ethnicity, it was bound to have affected A1's attitude to the authorities, and the criticism of the Board is that by concluding that A1 was not "a Convention refugee", the Board could not have given that factor sufficient weight. I disagree. The Board expressly stated that the treatment of A1's sister

"... is a strong factor to be taken into account when the Board assesses whether the Applicant has a cumulative claim to refugee status and the Board has carefully considered the implications of the death when deciding the claim."

The weight which the Board gave to the fate of A1's sister was a matter for the Board, and I cannot say that the Board failed to give proper weight to it.

14. In summary, therefore, the Board's decision is susceptible to the criticism that it failed to consider whether A1's detention in November 1988 could have amounted to persecution, and whether he was being investigated for the crime of arson in November 1990 simply because he was Chinese. However, bearing in mind the importance which the Board attached to the change of attitude towards ethnic Chinese in modern-day Vietnam, I have no doubt that the Board's ultimate decision in the case of A1 would have been the same even if its decision had not been susceptible to this criticism. In other words, balancing the extent of the persecution which the Board might have found A1 had endured in the past against the changes which have taken place in Vietnam in the meantime, the Board would inevitably have concluded that A1 and his family no longer had a well-founded fear that they would be persecuted on their return to Vietnam because of their Chinese ethnicity. That is a conclusion which the Board would have been entitled to reach.

LUONG MAN CUONG (A5)

15. A5 was born in September 1961 in Ha Tuyen Province. In July 1979, he was forced to move to a village reserved for ethnic Chinese. A5 claimed that he got married shortly thereafter, but that while his wife was pregnant and being required to do wholly unsuitable work for a woman in her condition, she died as a result of an accident. The Board was sceptical about the truth of that assertion, but what was not doubted was that in 1984 A5 re-married. His new wife (A6) had a daughter by her previous marriage (A7), who had been born in 1981. A5 and A6 then had a son (A8), who was born in 1985. Until A5-A8 managed to escape to Hong Kong at the end of 1990, they continued to live in the village.

16. Three criticisms are made of the Board's decision relating to A5-A8:

(i) Government employment. By 1975, A5 had found employment as a Government carpenter. He was dismissed from this employment when he was moved to the village. The Board found that his dismissal and his move amounted to persecution. The point being taken is that Government employment is sought after. It is guaranteed, secure and permanent. If the time which has elapsed since the persecutory loss of the "iron rice-bowl" has made it more difficult for A5 to secure Government employment as a carpenter if he was returned to Vietnam now, that would have been attributable to his Chinese ethnicity since it was his Chinese ethnicity which caused him to lose his job in the first place.

17. The criticism of the Board is that it failed to consider whether the difficulty in obtaining Government employment now contributed to the persecution which A5 fears he will be subjected to on his return to Vietnam. I do not think that the Board considered that. I am not surprised. The criticism is a very refined one. But the criticism is fallacious because it proceeds, I believe, on a false premise. The fact that a person is less likely to obtain privileges in the future because of persecution in the past cannot convert the future denial of the privileges into persecution if their denial would not otherwise have amounted to persecution.

(ii) The move in 1987. In 1987, A5 was required to move to a new village, where he "opened up land to farm" various crops. The use of the phrase "opened up" suggests that the land to which he was moved had not been put to agricultural use before. The criticism of the Board is that it did not consider whether this move to hitherto uncultivated land amounted to persecution. Alternatively, if the Board's reasons should be read as including a finding that this did not amount to persecution, that finding was inconsistent with the finding that A5's forced move to the village in 1979 was persecutory.

18. Where the Board found an act to be persecutory, the Board's practice was to say so. The Board did not say so in this case. In the circumstances, I proceed on the basis that the Board found that A5's move in 1987 did not amount to persecution. I do not think that that finding was inconsistent with its finding that his move in 1979 to the village amounted to persecution. There is a considerable difference between (a) being moved from Government employment to a remote village reserved for ethnic Chinese where A5 had no alternative but to live a new life as a peasant farmer and (b) being moved from there to a new village to work on hitherto uncultivated land.

(iii) A6's first husband. A6's first husband was imprisoned following an unsuccessful attempt to flee Vietnam. The Board said that "his imprisonment for an act in contravention of the Vietnamese Criminal Code was not persecutory". To the extent that the Board concluded that his imprisonment did not amount to persecution simply because he had committed a criminal offence, the Board was in error for the reason which I have already given. However, this error is immaterial. That is because the Board added that "the events of his life cannot fuel further persecution". It is said that this ignores one of the features of Vietnamese culture: perceived misconduct can result in punishment being exacted on innocent family members. I think that that reads far too much into the Board's words. I think that what the Board was saying was that even if the imprisonment of A6's first husband in 1982 amounted to persecution, it was simply too remote an event to have an impact on the treatment in 1996 of A5-A8 in the event of their return to Vietnam, especially in the light of the dramatic change of attitude towards ethnic Chinese.

19. In summary, therefore, I have not discerned any material errors in the Board's approach to the case of A5-A8.

LUONG THI LINH (A9)

20. A9 was born in September 1971 in Ha Tuyen Province. Her father died in 1974. In 1979, she and her mother were forced to move from their home to a village about 20 kms. away, and their previous home was confiscated. Her mother died in 1984, and she continued to live with her foster parents until she came to Hong Kong at the beginning of 1991.

21. Four criticisms are made of the Board's decision relating to A9:

(i) Loss of privileges. A9's father was a North Vietnamese soldier who had died in battle. As a result, A9 was entitled to financial assistance from the Government until she was 18, and her mother was relieved of the need to pay school fees for her. The Board was alive to these privileges, because it referred to A9's mother holding a "martyr's certificate" and having "welfare benefits due to her husband's military service". These privileges were lost when A9 and her mother were forced to become peasant farmers in 1979. If she had not been persecuted in that way, she would have had, to use Mr. Harris' words, "every prospect of becoming part of Vietnam's new elite". It is said that the Board failed to take that into account.

22. I reject this criticism of the Board. The Board found that the denial of education beyond the level of P3 to A9 amounted to persecution on racial grounds. To that extent, the Board cannot have ignored the fact that she would be educationally disadvantaged in the future. Indeed, the Board noted that she chose not to make use of such educational facilities as had been available to her in Hong Kong, and that she could educate herself or go to night school if she was returned to Vietnam. Mr. Harris made the point that that will require considerable application and determination on her part. I agree. But the point is that in assessing A9's claim to refugee status, it cannot be said that the Board ignored the educational disadvantages which A9 suffered.

(ii) The treatment of A9's mother. The Board was not prepared to accept much of what A9 claimed. But the Board did accept that in 1984 A9's mother attempted to leave the village to join her parents. When that attempt failed, she was detained and beaten. She died three weeks later. The Board said:

"The beating is to be deplored but was the individual act of an officer acting out with his duties."

It is said that the Board was saying that the beating of A9's mother could not have amounted to persecution because it had not been officially sanctioned. If that is what the Board had been saying, the Board would have been in error. However, it is not what the Board was saying. The Board said that if A9's mother had died as a result of the beating, the beating would have amounted to persecution. The Board must have thought that even if the beating and the death were not causally connected, the beating would still have amounted to persecution.

23. The Board thought that A9 had given inconsistent versions of the circumstances of her mother's death. The Board was unable to conclude that her mother had died as a result of the beating. The Board therefore found that her death was due to an unknown cause. This finding is challenged by Mr. Harris on the basis that the versions which A9 gave of the circumstances of her mother's death were not necessarily inconsistent with each other. I do not need to decide whether that argument is correct, because the Board went on to say:

"Even if the Board has erred, it is 12 years since the mother's death and this event can no longer substantiate a well founded fear of persecution in the Applicant."

In my view, what the Board meant was that even if A9's mother had died as a result of the beating, her death was too remote an event to have an impact on the treatment of A9 in 1996 in the event of her return to Vietnam. That is not to minimise the terrible trauma which A9 must have gone through when she was orphaned at the age of 13 as a result of her mother's violent death at the hands of local officials, but there is nothing to suggest that the Board overlooked that. Indeed, the language which the Board used shows that it did not.

(iii) The public security officer. The Board found that A9 may have been harassed by a public security officer who wanted either to marry her or to have an affair with her. The Board found, though, that he had never sexually assulted her or threatened her. The Board said that the officer had "acted for personal reasons unconnected to the Vietnamese authorities and was not an agent of persecution on their behalf." It is said that the Board was saying that such harassment as A9 was subjected to could not have amounted to ill-treatment because it had not been officially sanctioned. I think that there is some force in this criticism. I do not overlook the point made by Mr. Nicholas Cooney for the Board that the Board did not find that A9 was being harassed because she was Chinese. But if the Board had thought that any ill-treatment to which she was being subjected was for a non-Convention reason, it would surely have said so.

(iv) A9's marriage. A9 was refused permission to marry an ethnic Chinese whose marriage to her had been arranged. Permission was refused on the basis that he had attempted to flee from the area. It is said that the Board failed to consider whether that was persecution: after all, being refused permission to marry because her fiancé had attempted to escape from the persecution to which he was being subjected could well amount to persecution. Again, I see no answer to this point.

24. In summary, therefore, the Board's decision is susceptible to the criticisms in (iii) and (iv). However, bearing in mind the importance which the Board attached to the change of attitude towards ethnic Chinese in modern-day Vietnam, I have no doubt that the Board's ultimate decision in the case of A9 would have been the same even if its decision had not been susceptible to these criticisms. In other words, balancing the extent of the persecution which the Board might have found that A9 had endured in the past against the changes which had taken place in Vietnam in the meantime, the Board would inevitably have concluded that A9 no longer had a well- founded fear that she would be persecuted on her return to Vietnam because of her Chinese ethnicity. That is a conclusion which the Board would have been entitled to reach.

DUONG QUANG CHIEN (A10)

25. A10 was born in November 1969 in Ha Tuyen Province. On his arrival in Hong Kong in 1991, he was accompanied by two younger brothers (A11 and A12), who were then aged 20 and 11 respectively, and by his mother (A13). In 1979, the family was forced to move from their home to a village reserved for ethnic Chinese, and their previous home was confiscated. Until the family managed to escape to Hong Kong, they continued to live in the village.

26. Three criticisms are made of the Board's decision relating to A10-A13:

(i) Punishment for assisting escape. In November 1987, two of A10's sisters fled Vietnam. Assisting someone to leave Vietnam without permission was a criminal offence in Vietnam. As a result, A10's father was imprisoned for three months, and A10 and another brother were ordered to perform one month's unpaid labour. The Board noted that this was not a heavy punishment for that offence, but for the reasons I have already given, the Board erred in not considering whether this was capable of amounting to persecution.

(ii) The move in 1990. In November 1990, the authorities decided to separate the Meo and Chinese communities. This was achieved by removing Chinese families from where they were living. A10 and his family were required to move to a new area five miles away. The Board did not regard this move as an act of persecution against the local Chinese community, but rather as a security measure. The criticism of the Board is that it did not inquire into the security reasons which were said to justify the need to separate the two communities. For that reason, it is said that the Board simply could not come to an informed view as to whether the move was truly motivated by security considerations rather than by a desire to ill-treat the Chinese community further. I reject that criticism of the Board. There had been unrest in the Meo community earlier in 1990. A10's father had been suspected of being involved. In those circumstances, it was open to the Board to conclude that the authorities would have wanted to separate the Meo and Chinese communities for security reasons. That conclusion could be reached without the Board having to inquire into the precise security considerations which could be said to justify the need for separating the two communities.

27. Moreover, the Board went on to say:

"In any event the move is no longer relevant to a well founded fear of future persecution as if the family return to Vietnam they would be given a Ho Khau and accommodation in the Ha Tuyen area by the officials responsible for the reintegration of returnees. Once they obtain a Ho Khau they will be able to transfer their residence if they so wish."

The last sentence is criticised by Mr. Harris. He points out, correctly, that Ho Khau (which is the Vietnamese form of household registration) does not confer an automatic right to freedom of movment. Permission to move still has to be obtained, and there is no certainty that permission will be granted to this family. However, the Chairman of the Board, who also presided over the panel of the Board which considered the case of A10-A13, has explained what the Board's understanding of the position was:

"... the Board accepts that the Applicants will be returned to areas which were formerly Chinese Concentration Areas ..., but after obtaining Ho Khau they should be able to move from there to a place of their choice, except the three largest cities of Vietnam to which movement by any citizen of Vietnam, whether ethnic Chinese or otherwise, is controlled for reasons of population control ... After receiving Ho Khau the Applicants may apply to relocate. This is supported by the extract from the British Embassy report of March 1996, quoted in each of the Board's decisions, which are the subject of this application, in which it is stated that the CCAs are defunct and there have been relaxations in restrictions of travel and household registration." (My emphasis.)

In the light of that explanation, I do not think that the section in the Board's decision relied on by Mr. Harris is susceptible to criticism.

(iii) The father's death. In the course of their final escape from Vietnam, A10's father became separated from the rest of the family. After their arrival in Hong Kong, the family learned that he had been arrested, and had died in prison. The cause of his death is unknown. While sympathising with the family over this tragedy, the Board found that his imprisonment for the illegal act of attempting to escape from Vietnam without permission did not amount to Convention persecution. For the reasons which I have already given, the Board erred in not addressing the question whether the father's imprisonment could have amounted to persecution on the footing that all that he had been doing was attempting to escape from persecution, ill-treatment and discrimination.

28. In summary, therefore, the Board's decision is susceptible to the criticisms in (i) and (iii). However, bearing in mind the importance which the Board attached to the change of attitude towards ethnic Chinese in modern-day Vietnam, I have no doubt that the Board's ultimate decision in the case of A10-A13 would have been the same even if its decision had not been susceptible to these criticisms. In other words, balancing the extent of the persecution which the Board might have found that A10-A13 had endured in the past against the changes which had taken place in Vietnam in the meantime, the Board would inevitably have concluded that A10-A13 no longer had a well-founded fear that they would be persecuted on their return to Vietnam because of their Chinese ethnicity. That is a conclusion which the Board would have been entitled to reach.

CUU CHIN (A14)

29. A14 was born in July 1967 in Ha Tuyen Province. His father died in 1976. In July 1979, he was forced to move with his mother and brother to a village which was a 4-day lorry drive from where they had lived. A14 continued to live there until he came to Hong Kong in 1990.

30. The only criticism of the Board's decision in his case relates to the Board's analysis of the events in May 1990 which led to his escape from Vietnam. A14 claimed that on 10th May he had been arrested. He was accused of drafting and writing posters celebrating the king of the Meo tribe. The reason why he was suspected of having been involved was because (a) he had been named by a Meo who he used to rent a buffalo from, (b) he spoke the Meo language, and (c) his father had connections with the Meo. A14 refused to confess and was beaten. He was released from detention on 20th May, but on 24th May he was re-arrested. He was told that his family had to move to an uncultivated area which had been a burial ground for lepers. When he refused to move, he was beaten and charged with various offences. That night, despite being guarded by two guards, he managed to escape from custody when he went to a public toilet outside the public security office. That was when he fled to Hong Kong.

31. The Board interviewed A14. The Board did not believe his story. The Board thought that he had made it up to bolster his claim for refugee status. In its decision, the Board set out seven reasons why it regarded A14's story as incredible. Each of those reasons, and the materials to which the reasons referred, were discussed in detail by Mr. Harris and Mr. Cooney. I do not propose to lengthen this already lengthy judgment by analysing the reasons myself, though I have, of course, borne in mind all the points made to me. My conclusion is that it was open to the Board to be sceptical of A1's version of events to the point of disbelief.

32. But that is not the end of the matter. The Board went on to consider what its conclusion would have been on A14's claim for refugee status if it had found that A14 had been telling the truth. The Board concluded:

"... if the Applicant is returned to Vietnam there is no likelihood of this illiterate peasant farmer being considered of such a threat to national security that the authorities would impute a negative political opinion to him and persecute him thereby when they have no evidence against him for an event six years in the past."

Mr. Harris criticised this conclusion on the basis that there was no reason to suppose that A14 had been a threat to national security in 1990. All he had done was to refuse to confess his guilt to something which he had not done or to move to a new area. However, it was A14's case that he had been accused of threatening national security, and the Board was merely echoing the language which had been used on A14's behalf in the submission which had been addressed to the Board.

33. It follows that I have not discerned any material errors in the Board's consideration of A14's case.

CONCLUSION

34. For these reasons, this application for judicial review of the decisions of the Board refusing to accord the Applicants refugee status must be dismissed. At present, I see no reason why costs should not follow the event, and I therefore make an order nisi that the Applicants should pay to the Respondent its costs to be taxed if not agreed. However, since the Applicants are legally aided, which means that all the legal costs of these proceedings come from public funds, I direct that this order should not be enforced without the leave of the Court.