VONG A DONG v. THE REFUGEE STATUS REVIEW BOARD

1997 A.L. No. 32

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

____________

____________

_______________

J U D G M E N T

_______________

1. I propose to grant the Applicant leave to apply for judicial review of the decision of the Refugee Status Review Board ("the Board") that he is not a refugee, and to extend his time for doing so. In view of the fact that the Director of Immigration's practice is now, in many cases, to agree to a re-screening of an asylum-seeker from Vietnam if leave to apply for judicial review of the decision refusing the asylum-seeker refugee status is granted, I propose to give my reasons in brief by way of guidance to the Board.

2. In his submission to the Board, the Applicant identified the threat which he claimed had been made to him if he did not pay the fine of 600,000.00 dong: he would have to sign a confession statement to the effect that he had gone to China to build up contacts with Chinese spies. The threat was not, as the Board described it, a threat to accuse him of contacting Chinese spies, but a threat to force him to confess to that. That threat was reinforced by the violence which the Applicant claims he was subjected to at the time.

3. In those circumstances, it is in my view arguable that the Board's finding that the threat was obviously in the nature of a bluff, and was not something which the Applicant should take seriously, was not one which was reasonably open to the Board. If the Board had appreciated that the threat was a threat to force him to confess to contacting Chinese spies, it is quite possible that it would have concluded that that threat, accompanied as it was by the violence which the Applicant claims, was not a bluff. What might have been a bluff was whether any confession statement which the Applicant might have signed would have been used against the Applicant if he subsequently continued to fail to pay the fine. But if that was the question which the Board considered (and, in my view, it is likely that the Board did not), I think that it would still be arguable that the Board's finding that that threat was a bluff was not one which could reasonably be reached.

4. The Applicant avoided having to sign the confession statement by escaping from Vietnam. In those circumstances, if the Board had found that the possible use of any confession statement which the Applicant might have made was not a bluff, the question for the Board would have been whether the Applicant had a well-founded fear in 1994 that on his return to Vietnam (a) attempts would have been made again to force him to confess to contacting Chinese spies, and (b) if he succumbed to that pressure, his confession statement would have been used against him. That was not a question which the Board addressed in view of its finding that what it thought the Applicant was being threatened with was a bluff. In my view, it is arguable that if the Applicant would have been punished as a result of the use of the confession statement against him, that would have amounted to persecution for a Convention reason, namely for the political opinions which the confession statement imputed to him.