PHUNG HOAN and Others v. THE DIRECTOR OF IMMIGRATION and Another

1997 No. MP 288

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 Applicants are ethnic Chinese. They come from Vietnam. There are eight of them in all, and they consist of two families. They have staunch anti-Communist backgrounds, and claim to be nationals of Taiwan. They allege that as a result of their Chinese ethnicity and Taiwanese nationality, they were persecuted while in Vietnam. Eventually, they fled to Hong Kong. Phung Hoan (A1) came to Hong Kong with his wife and children in August 1989. Tan Te Lam (A5) came to Hong Kong with his wife and children in April 1991. They applied for refugee status. That was refused, and they were then detained pending their repatriation to Vietnam.

2. After a number of years in detention, they applied for their release. In January 1995, their detention was declared unlawful on the basis that Vietnam was not prepared to accept their repatriation, and that there was no prospect of them being removed from Hong Kong in the foreseeable future. The case attracted wide publicity. Although the Court of Appeal subsequently set aside the orders releasing them, the orders for their release from detention were subsequently restored by the Privy Council.

3. However, in October 1996, the Vietnamese authorities agreed to accept the return of the Applicants. Accordingly, they were re-detained on 14th January pending their repatriation to Vietnam. On 16th January, their solicitors wrote to the Assistant Director of Immigration requesting that they be treated as refugees "sur place". The Director of Immigration refused the Applicants' "sur place" claims to refugee status by letter dated 23rd January.

4. The Applicants decided to apply for leave to apply for judicial review of the original decisions by which they were refused refugee status, and of the recent decisions refusing to grant their "sur place" claims to refugee status. That application was filed yesterday. The Director of Immigration wished to be heard on whether leave should be granted. I decided to permit her to be heard. However, the application had to be heard quickly. There were two reasons for that:

(i) The Director of Immigration proposed to include the Applicants on a flight for persons to be repatriated to Vietnam under the Orderly Repatriation Programme which was scheduled for this morning. I know from other cases that the Director of Immigration will not normally postpone a Vietnamese asylum-seeker's removal from Hong Kong if the asylum-seeker has not obtained leave to apply for judicial review of the decisions refusing to accord him refugee status. Conversely, in Thoong Coc Duong v. The Director of Immigration (CA 250/96), the Court of Appeal held that a stay on the removal of the asylum-seeker from Hong Kong logically followed from the grant of leave to apply for judicial review of the decisions which triggered the Director of Immigration's power of removal.

(ii) I was told that if I refused to grant leave to apply for judicial review, and therefore refused to restrain the Director of Immigration from removing the Applicants from Hong Kong this morning, an appeal against the refusal to grant such an injunction would be lodged immediately. Accordingly, I was being asked to make my decision in sufficient time to enable such an appeal to be mounted yesterday evening if it proved to be necessary.

5. The hearing before me commenced at 2:30 p.m. yesterday afternoon. It was complicated by two additional factors:

(i) There was a large number of documents to read. Although the bundle was not paginated, it ran to approximately 200 pages. The Notice of Application itself was 32 pages long. It had to be read with care, as had the reasons of the Refugee Status Review Board ("the Board") which confirmed the decisions of the Director of Immigration that the Applicants had not established a well-founded fear of being persecuted if they were repatriated to Vietnam.

(ii) There was another group of Applicants who were also due to be repatriated to Vietnam today. I discovered that I was also being asked to deal with an application by them for leave to apply for judicial review of the decisions refusing to grant them refugee status. I had a passing acquaintance with their cases, because they had all been Applicants in Tran Van Tien v. The Director of Immigration (HCMP 3644/95). However, none of them had been the four "test" Applicants in that case, and they had all accepted offers of re-screening. Moreover, the bundle of documents in their case was even bulkier than the bundle in the present case.

6. Fortunately, another judge was eventually found to hear that application, but it was already 4:30 p.m. by the time we had sorted out how we were to proceed, and by the time I had read and absorbed the relevant documents in the present case. The hearing continued until 7:15 p.m. I wanted a little time to make my decision. At 9:30 p.m., I phoned the parties' representatives with my decision, which was to refuse the Applicants leave to apply for judicial review, and to refuse to restrain their removal from Hong Kong. I said that I would give my reasons this morning, and this I now do.

THE ORIGINAL DECISIONS

7. In neither of the cases did the Board interview the Applicants. Nor did the Board expressly state that it accepted the truth of their complaints. In those circumstances, I propose to treat the Board in both cases as having proceeded on the assumption that what the Applicants had said when interviewed by immigration officers about their lives in Vietnam was true.

8. The Applicants claimed that, as Taiwanese nationals, they had been subjected to a variety of discriminatory measures which the Vietnamese authorities apply to resident aliens. According to the decisions of the Board, those measures included restrictions on their travel, the refusal of business licences and the inability of their children to be educated at State schools. A1 also complained of a requirement to report to the provincial police every month, and A5 also complained of the unavailability of free medical treatment or of work in a State-owned enterprise, and of his inability to acquire Ho Khau (the Vietnamese term for household registration).

9. In the Notice of Application, it was contended that the Board expressed the view that because the Applicants were not treated any differently from the way in which other resident aliens were treated, their treatment did not amount to persecution. Having read the decisions carefully, I do not think that that criticism has been made out. The Board undoubtedly found that the Applicants had been treated in the way they had been because of their status as resident aliens. The Board also found that their treatment as resident aliens was very different from that of Vietnamese nationals. But I do not discern any basis for attributing to the Board the view that it was proper to compare the Applicants' treatment with other resident aliens, and that if the Applicants were treated no more harshly than them, their treatment could not amount to persecution.

10. To be fair, Mr. Philip Dykes for the Applicants did not advance this argument as part of his case. He took the point that resident aliens should not be confused with temporary aliens. For example, it may be perfectly legitimate to deny free medical treatment to temporary visitors from overseas, but it is another matter entirely to deny such treatment to aliens who live in a country permanently. However, there is, in my view, no basis for thinking that the Board confused the Applicants with temporary aliens. It is true that in the case of A5, the Board referred to his status as being "temporary, and subject to renewal", but that can only sensibly have been a reference to what the Board in the case of A1 referred to as "the necessity to renew alien residency permits on an annual basis".

11. Mr. Dykes' most compelling point was that although resident aliens in Vietnam can justifiably be treated differently from Vietnamese nationals in certain respects - for example, in the exercise of political rights - the treatment to which the Applicants were subjected was so discriminatory that the Board must have erred in some way in concluding that it did not amount to persecution. In that connection, Mr. Dykes reminded me of paras. 54 and 55 of the Handbook on Procedures and Criteria for Determining Refugee Status issued by the office of the UNHCR ("the Handbook"). They provide as follows:

"54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive 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."

12. In addition to the treatment to which the Applicants were subjected because they were resident aliens, A1 also complained in this connection about his treatment in other respects. The Board in his case recorded him as complaining about his being ordered to close his business in 1976, about the conversion later that year of part of his house for Government use as a store, about the curfew imposed on his family when stock from the store went missing, and about the punishments to which A1 and his family were subjected for leaving Vietnam without permission, including the compulsory acquisition of their home and the requirement on the family to move to another part of Ho Chi Minh City. These measures were taken against A1 and his family because of the transition from private to collective ownership following the fall of Saigon in 1975, and because leaving Vietnam without permission is a criminal offence for all Vietnamese residents, whether nationals or aliens. Of course, an alien must take the foreign country as he finds fit, and that means that he must suffer the political vicissitudes of life in that country, and must share to that extent the fortunes of its nationals. But as Mr. Dykes correctly pointed out, treating aliens in the same way as a country's own nationals will nevertheless amount to persecution if the treatment of the nationals amounts to persecution.

13. Ultimately, the question whether the treatment to which the Applicants were subjected was so discriminatory that it amounted to persecution was a value judgment for the Board. It should not be overlooked that the Applicants were relieved of some of the burdens of citizenship as a result of being resident aliens. For example, in A5's case, the Board noted that resident aliens are not liable to conscription in Vietnam, nor are they required to perform unpaid community labour. These may be small rewards in comparison to the harsh treatment to which resident aliens are subjected, but the weight to be attached to the individual components of that treatment was for the Board to assess. It may be that some people might quarrel with the view of the Board

(a) in the case of A1, that lack of access to State schools was ameliorated by the fact that A1's children "obtained basic levels of education ... through the help of a friend", or

(b) in the case of A5, that his "children were able to get education in a fee-paying private institution or, in the case of the younger child, by using the Birth Certificate of a handicapped son of a relative", or that "[p]rivate medical care was available, although the family were unable to buy the saline solution needed to save the life of their son".

But in the final analysis, I cannot discern any error in the Board's approach to the value judgments it had to make, nor can I say that there are arguable grounds for asserting that its value judgments were Wednesbury unreasonable.

14. There are two other matters I should mention:

(i) In A5's case, the Board said:

"... the Applicant's Taiwanese nationality is a matter of choice on his part. Like other ethnic Chinese in Vietnam, the opportunity to apply for Vietnamese nationality was given to them, but rejected."

I confess that when I first read this passage, I thought that the Board was saying that by not accepting Vietnamese nationality, A5 was responsible for the treatment to which he and his family were subjected, and that he could not for that reason complain that his treatment amounted to persecution. On reflection, it is plain that that is not what the Board was saying. The Board made its comments in connection with the complaint made in the AVS submission that A5 may be stateless. He was not a Vietnamese national because he had refused Vietnamese nationality. He was not Taiwanese either because the Taiwanese authorities refused to accept him. The relevance of the comment was that, if A5 was properly regarded as stateless, the status of statelessness was not as a result of harsh treatment by the Vietnamese authorities, but the consequence of the attitude of the Taiwanese authorities to his claim to Taiwanese nationality.

15. In the interests of completeness, I should record the fact that the Board has been criticised for finding that A5 was offered Vietnamese nationality but refused to accept it. The criticism was that there was no evidence to support that finding. That is true, but what Mr. William Marshall Q.C. for the Respondents told me was that the Board was relying on its own knowledge (gleaned from Ramses Amer, "The Ethnic Chinese in Vietnam and Sino-Vietnamese Relations", Kuala Lumpur, 1991) that on a number of occasions up to 1988, the Vietnamese authorities asked the ethnic Chinese living in Vietnam to take up Vietnamese nationality.

(ii) In 1972, A1 had informed the authorities in South Vietnam of the communist views of one of his colleagues at work. The man's name was Duong. In April 1989, A1 learned that Duong had become a public security officer, and had arrested the person to whom A1 had overheard Duong expressing communist views 17 years earlier. A1 believed that Duong was about to arrest him, and went into hiding. That evening, public security officers went to A1's home. His wife was questioned as to his whereabouts. She professed to be unable to help. As a result, she was interrogated by Duong at the public security office. She was beaten up by public security officers, and was only released a few days later following a short spell in hospital.

16. The immigration officer found as a fact that it was this incident which caused A1 and his family to flee to Hong Kong. The Board did not make an express finding to that effect, but it did not express any disagreement with that view. What the Board said was that this incident did not amount to persecution. The pursuit of A1 by Duong was "a personal vendetta which had resulted in an opportunistic but personal abuse of power". A1 was sought "to settle an old score resurrected as an act of personal revenge". It is said that in approaching the incident in this way, the Board erred in law. The fact that Duong had a personal grudge against A1 did not prevent the incident from being persecution: since Duong was a public security officer himself, A1 had nowhere to turn for redress.

17. I do not agree. 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."

Accordingly, what the Board had to decide was whether Duong's conduct was knowingly tolerated by the authorities, and if not, whether A1 could get protection from the authorities. The Board found as a fact that Duong's conduct was not knowingly tolerated by the authorities. It found:

"The alleged beatings are to be deplored and were unauthorised acts of those officers who carried out such beatings. The Board does not accept that such violence was permitted or countenanced by the Vietnamese authorities."

It is true that there is no express finding that Duong's superiors would protect A1 from harassment from Duong in the future. But I think I must assume, from the Board's ultimate conclusion, that it concluded either that A1 would be protected from harassment by Duong if he was returned to Vietnam, or that such harassment to which he was likely to be subjected would not amount to persecution. I do not think that I can characterise either of those conclusions as ones which the Board could not reasonably have reached.

THE RECENT DECISIONS

18. Mr. Marshall contends that the recent decisions refusing to grant the Applicants' "sur place" claims to refugee status are not amenable to judicial review. I have not reached a concluded view on that topic, because I have reached the conclusion that, on the assumption that they are amenable to judicial review, there are no arguable grounds for contending that the Director of Immigration erred in law in rejecting the Applicants' claims.

19. The term "refugee 'sur place'" is explained in para. 94 of the Handbook as follows:

"The requirement that a person must be outside his country to be a refugee does not mean that he must necessarily have left that country illegally, or even that he must have left it on account of well-founded fear. He may have decided to ask for recognition of his refugee status after having already been abroad for some time. A person who was not a refugee when he left his country, but who becomes a refugee at a later date, is called a refugee 'sur place'."

Para. 96 continues:

"A person may become a refugee 'sur place' as a result of his own actions, such as associating with refugees already recognized, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities."

The basis of the Applicants' "sur place" claims to refugee status was summarised by their solicitors as follows:

"Since their release from detention in January 1995, these families have given many interviews that were broadcast by the electronic media and published by the print media. A good proportion of these articles were critical of Vietnamese policy towards them and their families, and described the way in which they had been treated as persecution. Mr. Tan and his wife, for example, have repeatedly criticised and expressed their hatred of the Vietnamese government for having denied one of their babies medical care on account of their nationality status, resulting in the death of that baby. Given the Vietnamese government's intolerance of criticism of its policies and officials, these families have a strong 'sur place' claim to refugee status that has not been considered by your Department."

20. Two things need to be said about the Applicants' "sur place" claims to refugee status. First, the views which the Applicants have expressed in interviews with the press and on television are, I imagine, no different from what they told the immigration authorities in the screening process. The only difference is that their criticisms of the Vietnamese authorities have now be made public. Secondly, there is no evidence that the fact that their criticisms have now be made public will affect their treatment in Vietnam. In summary, whatever else may be said about the Vietnamese authorities, I do not suppose that they can be accused of naivety. They must know that asylum-seekers from Vietnam who seek refugee status in Hong Kong are going to claim that they were treated harshly and inhumanely in Vietnam. Accordingly, the fact that the Applicants have gone public with their allegations can hardly be said to have given them a "sur place" claim to refugee status. They did not have to go public about their complaints for the authorities in Vietnam to know that they must have been criticising their treatment there.

CONCLUSION

21. These, then, were my reasons for refusing to grant the Applicants leave to apply for judicial review. Since they could not challenge the decisions refusing to accord them refugee status, it would not have been appropriate to grant them an injunction restraining their removal from Hong Kong.

22. However, I want to add something to what I said in Diep Hoai Sung v. The Director of Immigration (HCMP 16/97) about the emerging practice of challenges to the screening process being made at the last minute when the asylum-seeker's removal from Hong Kong is imminent. In that case, I acknowledged that

"the Applicants' solicitors, Messrs. Pam Baker & Co., are well known for their interest in, and concern for, asylum-seekers from Vietnam who are detained in Hong Kong. With so many potential clients and with limited resources, they probably have difficult decisions to make as to which of their clients they should devote their energies to at any one time. It makes absolute sense for them to give priority to those who are in imminent danger of removal from Hong Kong."

However, the closer the application is made to the Applicants' proposed removal from Hong Kong, the greater the pressure on the Court. The decisions which the Court is being asked to make in these cases are not easy. The Court is aware of the enormous importance of them to the Applicants, and of the need therefore to scrutinise the decisions challenged with care. But if that task is to be done properly, it takes time. In this case, I have been conscious of the pressure on me to reach my decisions in sufficient time to enable them to be reviewed by a single Justice of Appeal if they were adverse to the Applicants. I do not believe that that pressure has ultimately had an adverse effect on my decision-making powers, but I think that that was only because this is an area of the law in which I have some familiarity.

23. The point I am making is that if it is possible for the Applicants' solicitors to bring these applications before the Court a little earlier - if only 24 hours or 48 hours earlier - that will be better for everyone concerned. Having said that, I do not for one moment criticise the Applicants' solicitors for not bringing this application before the Court until yesterday, because I note that it was not until last Thursday morning, 23rd January, that they were informed that the Director of Immigration proposed to effect the Applicants' repatriation to Vietnam today. What is important is that the Director of Immigration gives the Applicants' solicitors the longest possible notice of who it is intended to put on any impending flight. Otherwise, a judge less familiar with this area of the law than I who is presented with a last minute application of this kind may feel that he has no alternative but to restrain the Director of Immigration from removing the asylum-seeker from Hong Kong for the time being, simply to buy time to enable him to give the case the consideration which it deserves.