NGUYEN NGOC TOAN AND ANOTHER v. CHAN LEUNG WAI CHING, A SENIOR IMMIGRATION OFFICER

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HEADNOTE

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                    A determination that a Vietnamese boat person is not a refugee may be quashed by certiorari in the High Court if such determination was arrived at in violation of the rules of natural justice.

                    The mere fact that the decision maker did not see the asylum seeker does not violate the rules of natural justice.

                    But the rules of natural justice were violated where - as in the present case - what reached the decision maker on paper (following interviews, reports, recommendations and advice by others) fell short (by reason of a material omission along the way) of a full and fair representation of the case presented by the asylum seeker.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. The applicant, Nguyen Ngoc Toan, is a 15 year old boy who belongs to the group of persons commonly known as "Vietnamese boat people". Travelling by boat from Vietnam, he arrived in Hong Kong on July 5, 1988, seeking resettlement elsewhere. Under our immigration laws, his landing here was unlawful. Nevertheless, section 13A(1) of the Immigration Ordinance, Cap.115 empowers an immigration officer or chief immigration assistant to permit a person like him to remain here as a refugee pending resettlement elsewhere.

2. There was a time when it was the Government's policy to accord Vietnamese boat people refugees status as a matter of course. That policy was discontinued as from June 16,1988. Thereafter, they would be accorded such status only if they came within the definition of the term "refugee" contained in the United Nation's 1951 Convention and 1967 Protocol relating to the Status of Refugees which, in so far as is material, defines "refugee" as "... any person who ... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ...". Neither the Convention nor the Protocol applies to Hong Kong. But pursuant to an understanding between the Government and the UNHCR - to use the common abbreviation for the United Nations High Commissioner for Refugees - that definition has been used when exercising the power under section 13A(1) to permit Vietnamese boat people who land here unlawfully to remain here as refugees pending resettlement elsewhere.

3. On October 5, 1989, an immigration officer who had interviewed Toan under the then "screening" system, minuted his view that the boy had not established a well-founded fear of persecution. Then on October 11, 1989, while Toan's file was with the senior immigration officer who is now the respondent in these proceedings, Mrs Chan Leung Wai Ching, she received a sectional instruction which stipulated that the cases of unaccompanied minors like Toan who had been interviewed were to be held in abeyance. That was the result of a plan to adopt a new screening system for vulnerable asylum seekers.

4. It was under the new system which was evolved that Toan was "screened out" by Mrs Chan's determination of September 6, 1990, that he was not a refugee within the meaning of the 1951 Convention and 1967 Protocol and that, accordingly, he was to be refused premission to remain here as a refugee pending resettlement elsewhere. That determination is the determination under attack in the proceedings before me.

5. In outline, the system - that is to say the new system - involves : first, interviews by case workers with the ISS - to call the International Social Service by the abbreviation by which it is commonly known; secondly, the forwarding of such case workers' reports to a committee of the UNHCR known as "the Special Committee for Vulnerable Persons"; thirdly, the making by the Special Committee of a recommendation to the Director of Immigration on refugee status and the giving by it to him of advice on "durable solutions"; and, finally, a determination under section 13A(1).

6. As to the interviews, the paper on the basis of which it would appear that the ISS, the UNHCR and the Government work provides - under the sub-heading "3.3 Completion of ISS reports" - as follows :-

7. The ISS case worker who conducted the interviews in Toan's case, Ms Barbara Lane interviewed him on April 10, 17 and 21, 1990. She signed her report on the 22nd of that month. In so far as it is in UNHCR questionnaire format, her report runs to 34 pages. It details what Toan says that he and his family had been suffering, and would continue to suffer, in Vietnam because his father had, as a ship's mechanic, worked for American concerns during the Vietnam War. The complaints detailed in that report may be summarised thus - provided that one bears in mind always that it is only a summary : confiscation of the father's tools of trade; denial to the father of a right to earn a living legally; spying on the family by neighbours; constant questioning of the family by the security police; the destruction by that organisation of the Buddhist temple which the family had set up in a hut attached to their home; denial to a brother of a right to earn a living, showing that such denial is also visited on Toan's generation; forced labour which the father has to do two or three days every two months on the basis of being a member of a disfavoured group; extra labour at school for Toan himself on that basis; and taunting and physical abuse at the hands of schoolmates unchecked by the teachers who themselves treat him worse than others.

8. Ms Lane added to her report what she headed

"Addendum : Interviewer's Opinion" and which reads :

9. As to Ms Lane's addendum, this is what is said in an affidavit sworn by Mrs Angela Ann Geer, the Project Co-Ordinator of the ISS's Vietnamese Unaccompanied Minors and Vulnerable Persons Project :

"I further wish to affirm that [Ms Lane's addendum] is not and cannot be part of the official report submitted by the ISS office to the Special Committee for Vulnerable Persons and is hence not listed on page 17 of the said report as an attachment. Such adenda have been prepared in some cases at the initiative of ISS case workers outside the remit of their official duties, and unofficially shared with the Special Committee for Vulnerable Persons. The qualifications and competence of the said case workers pertain to the interviewing of minors, and collecting of relevant information, and the assessment of the minors' ability to articulate a claim to refugee status. They do not, therefore, include the expression of opinions regarding the merits of the minors' claims to refugee status and/or the appropriate durable solution."

 

10. Nevertheless, Ms Lane's addendum was sent to the Special Committee. But it was not sent by the Special Committee to the Director of Immigration. The Special Committee - by a document dated July 17, 1990, headed "Recommendation and Advice" and signed by its Mr Johan Cels on its behalf - recommended against granting Toan refugee status because "... the discrimination/harassment encountered by the family and the minor do not amount to a well-founded fear of persecution." As to what is termed a "durable solution", it advised that it is in Toan's best interest to return to his family in Vietnam, emphasising the advantages of a person of his age living with his parents. Ms Lane's report in questionnaire format was - less the addendum thereto as I have said - forwarded to the Director by the Special Committee. So the report in that format, but not the addendum, was before Mrs Chan. There is a suggestion that - because Ms Lane's name and signature were blanked out before it was sent to the Special Committee - Mrs Chan would, in all the circumstances, have been led to believe that the interview was conducted by Mr Cels. I do not see any foundation for that suggestion. Mrs Geer has informed the Court on affidavit that such blanking out was in conformity with the ISS's practice at the time. There is no reason to fear that Mrs Chan was unaware that the system involved the interviewing being done by ISS case workers rather than by persons like Mr Cels.

11. In her affirmation Mrs Chan says as she was satisfied that Toan was not a refugee after she had "weighed" all the documents - not only the Special Committee's Recommendation and Advice but also the ISS report in UNHCR questionnaire format and the Immigration Department's own files.

12. What Mrs Chan did not have was Ms Lane's addendum Does that matter? For the respondent, Mr Bell submits that it does not. One of his arguments in support of that submission is that there is nothing in the addendum to Ms Lane's report which is not in the body of that report. Here Mr Bell draws particular attention to items (a) to (d) at page 30 of the report and that part of the report which runs from the penultimate paragraph at page 32 to the end of page 33. Items (a) to (d) at page 30 read :

13. The paragraphs at pages 32 to 33 stressed by Mr Bell in the present connection read :

14. In the courts of this territory, this boy's path to justice is neither narrow nor ill-lit. It is constituted by the rules of natural justice. He sought from our immigration authorities a determination under our laws of his claim to refugee status, on the strength of which status he was seeking asylum here. He was, therefore, entitled to be heard and heard fully and fairly. In the very difficult circumstances created by the massive influx of Vietnamese boat people, it was felt - justifiably in my view - that it was impracticable for the decision maker - Mrs Chan in the present case - to see the asylum seeker in each and every instance. So a system of interviews, reports, recommendations and advice such as we have seen was devised. Provided that the asylum seeker's case reaches the decision maker in a form which amounts to a full and fair representation of it, the mere fact the decision maker does not see the asylum seeker in person does not, in my view, constitute a violation of the rules of natural justice. But what reaches the decision maker must amount to a full and fair representation of the asylum seeker's case.   In this connection, it hardly needs to be said that the asylum seeker's honesty and reliability are vital to the success of his quest for asylum. If he is disbelieved outright, it naturally falls to the ground at once. If it is felt that he has been guilty of exaggeration or of having an over-active imagination to any material extent, the eventual result is likely to be the same, namely, a denial of refugee status. Throughout one must not forget that the criteria of a well-founded fear of persecution involves an obejctive as well as a subjective element.

15. With all that in mind, let us look at what happened here. The interviewer and the interpreter - who were the only persons concerned in the decision making process who saw him - considered Toan to be honest and reliable. That view is contained both in the body of the report, which was before the decision maker, and in the addendum thereto, which was not before the decision maker.

16. But it seems to me that the omission of the addendum diminished the presentation of the boy's case not only quantitatively but also qualitatively. Apart from the fact that the use of language in the addendum is plainer and more graphic than the use of language in the body of the report, it is only in the addendum that it becomes clear that the interviewer's acceptance of the boy's account is based on the way in which he related it in addition to any favourable view she may have held of its inherent probability. In the addendum one finds, as we have seen, the person who interviewed the boy saying that he spoke "honestly and spontaneously". That goes to the manner as opposed merely to the matter of his answers; and there is no equivalent to it in the body of the report.   For somebody dealing with the matter on paper to reject the interviewer's view of the inherent probabilities of the case is one thing. Rejecting the seeing and hearing interviewer's assessment of the credibility of the person interviewed is another matter altogether. It is to be noted that when the word "credibility" is used in the body of the report, it is the credibility of the boy's "interviews" that is mentioned. That is somewhat ambiguous. It could mean no more than that the boy's account was inherently worthy of credence. That is a view from which the decision maker may have been disposed to differ even if she would not have been prepared to reject the interviewer's view of the facts based on her assessment of the person relating them.

17. It seems to me that the qualitative diminution of the presentation of Toan's case resulting from the witholding of Ms Lane's addendum from Mrs Chan was a material diminution. The addendum might have made the difference between success and failure. It must be remembered such favourable expressions of the accuracy of Toan's account as were in Ms Lane's report less the addendum thereto reached Mrs Chan not on their own but in the company of the Recommendation and Advice signed by Mr Cels. And in that document each and every one of Toan's complaints is prefaced by a formula such as "the minor claimed". Even if that formula does not involve a rejection of the truth of the complaints, it implies at the very least an unwillingness to accept that they are free of exaggeration. The formula is used again and again. The air of doubt generated thereby is at the very least significant. And if anything turned on it, I am prepared to say that it is all-pervasive.

18. In all the circumstances, even a mere quantitative let alone a qualitative - diminution of the presentation of Toan's case to Mrs Chan would have caused me considerable concern.

19. If the acceptance in the addendum of Toan's account by Ms Lane based on her impression of him was before Mrs Chan along with the air of reservation or doubt conveyed by the Recommendation and Advice, then Mrs Chan, as a reasonable decision maker, would no doubt have endeavoured to clarify the position. One cannot be sure how she would have gone about that. The reasonable possibilities include these: accepting Ms Lane's view of Toan's credibility since she had seen him and the Special Committee had not; getting together with Ms Lane and the Special Committee; seeing the boys herself.

20. None of that happened. None of it could happen since Mrs Chan did not have the addendum. The Special Committee did not forward it to her. Nor is there any suggestion that it informed Ms Lane that her view of Toan's credibility would not reach the decision maker. Had that happened, Ms Lane may have felt that the body of her report should be recasted to include that view or expanded so that the decision maker could better judge therefrom the inherent probability of Toan's account being true and free of exaggeration.

21. As things happened, the favourable assessment of the boy by the person who actually interviewed him never reached the decision maker. That was the state of affairs - in the context of a system under which the decision maker does not normally, and in this case did not, see the person affected by the decision.

22. So did Toan have his case fully and fairly presented? In my judgment, he did not. Through no fault of the asylum seeker, the interviewer or the decision maker - and without any bad faith on anybody's part - the asylum seeker here was nevertheless, in the events which have happened, denied natural justice in his quest for asylum.

23. It is submitted by Mr Bell that, even if that is so, certiorari should nevertheless be witheld because of the existence of the alternative remedy of a review before the Refugee Status Review Board. I reject that submission. It would appear that the boy did not even know that a review had been sought on his behalf by somebody other than his legal advisers, who did not even know that such a thing had happened. The Board - as one sees from section 13F(7) of the Immigration Ordinance - acts in an "administrative or executive capacity" when considering a review. The Board which "decided" against the boy - if what it did constitutes a "decision" in law in the circumstances - did so without being made aware by anybody of the denial of natural justice which I have found. Moreover, a body such as the Board before which neither the applicant nor his representative has a right to be present is hardly appropriate for the proper determination of the difficult points of law to which a complaint that natural justice has been denied often gives rise - and to which this case has given rise. Even though I have not rehearsed the many authorities to which I have been referred, I have been much assisted by counsel's citation thereof and by their submissions thereon. It seems to me that the present circumstances are indeed wholly exceptional and that there is every reason not to let the alternative remedy or what happened in connection therewith stand in the way of certiorari if it is otherwise appropriate.

24. Quite apart from anything else, if the refusal of asylum is liable to be struck down as having been arrived at in violation of the rules of natural justice, then there is really nothing viable for the Board to review. There is no question here of the want of natural justice having been Cured by what happened before the Board.

25. Another submission of Mr Bell's is one which he made by reference to section 13F(8) of the Immigration Ordinance, which reads :"A Board shall not be required to assign any reason for its decision and a decision of a Board shall not be subject to review or appeal in any court". the shortest answer to that submission is that it is not a decision of the Board which is being subjected to review. In any event, it is to be remembered that in Anisminic v. Foreign Compensation Commission [1969]2 A.C. 147 at p.171 C to E, Lord Reid in terms identified failure to comply with the rules of natural justice as one of the things which renders a decision liable to being treated as a nullity. It is true that his Lordship was referring to tribunals. But what is the material difference for present purposes between a tribunal and an authority? In Reg. v. Secretary of State for the Environment, ex parte Ostler [1977]1 QB 122 at p.138 E, Lord Justice Goff (as he then was) made the point that where a person is "... conducting an administrative or executive matter ... questions of policy enter into and must influence his decision". In the present case, all questions of policy had already been settled for Mrs Chan, who merely had to come to a conclusion on a question of fact and degree. In my judgment, the courts' jurisdiction has not been ousted

26. In my judgment, there has been a denial of natural justice in the course of the decision making process here. That was not the fault of the decision maker. Nor was it the fault of the person affected by the decision or any agent of his. What matters is that he receives treatment which is fair. Through no fault which can be laid at his door, he did not receive that.

27. By an order of certiorari, I bring up the respondent's determination of September 6, 1990, that the applicant was not a refugee and quash it.

28. Had the Director of Immigration been a party, I would have gone on to remit the applicant's quest for refugee status to him - as the relevant "authority" under Order 53 rule 9(4) - for him to reconsider it and reach a decision thereon in conformity with the rules of natural justice. As it is, I do not go on to make an order remitting the matter. Nevertheless, I am sure that the matter will be reconsidered since we now have in this boy an asylum seeker whose quest for asylum remains to be determined.

29. I would not, in any event, have acceded to the invitation by Mr Pritchard for the boy to remit the matter with a direction to determine that he is a refugee. That, as a matter of procedure, would be a matter for mandamus - which is, not something being sought before me. And as a matter of substance, I do not consider it appropriate to deal with the question of whether the determination is Wednesbury unreasonable or irrational either. I have held that something has gone so seriously awry in and about the decision making of the determination here in question that it is not a viable determination at all. That being so, it seems to me inappropriate to go into the merits of the determination as such. I do not like delay in this matter more than anybody else. But I do not think that shortcuts are at all advisable either. In my view, the appropriate course for me to take - having intervened in so far as it was necessary to restore this matter to even keel - is now to give it a chance to run its normal course through normal channels.  Perhaps no further application to the courts will be necessary. The boy may succeed at the hands of an immigration officer or before the Board. I do not think it is necessary or appropriate at this stage to exercise this Court's supervisory jurisdiction beyond the extent to which I have exercised it by quashing the flawed determination adverse to the boy, clearing the way for a proper one.

[Submissions on costs]

30. As is apparent from the judgment which I have just delivered, this is an unusual case to say the least. When everything is taken into account, the proper order for costs, I think, is simply one that the parties be left to bear their own costs. I could articulate my reasons at some length. But in the course of the judgment which I have just delivered, I took great care to avoid saying anything which could damage any person or persons who are not before the Court, and also to avoid saying anything which could predjudice the future conduct of this matter. That being so, I choose the disadvantage of not going into my reasons over the danger of saying something at variance with the objectives which I have just identified in regard to reputation of persons and the future conduct of this matter.

31. I, of course, make an order that the applicant's costs be taxed under Legal Aid Regulations.