VO VAN HUNG v. TORTURE CLAIMS APPEAL BOARD

HCAL 1091/2017

[2019] HKCFI 2113

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1091 OF 2017

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JUDGMENT

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1.  With leave granted by this Court on 29 June 2018, this is the applicant’s application for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal/petition against the decision of the Director of Immigration (“the Director”) in rejecting his non-refoulement claim for protection from being refouled to his home country The Socialist Republic of Vietnam (“Vietnam”).

2.  The applicant’s grounds are essentially that the Board failed to apply high standards of fairness in assessing or evaluating the risks of harm which he claims to fear upon his refouledment to Vietnam, that it failed to take into account the relevant Country of Origin Information (“COI”) in evaluating such risks, and that in any event its decision was Wednesbury unreasonable.

3.  Whilst the Board has adopted its usual neutral stance and has been excused from the hearing as requested, the application was opposed by the Director in that the applicant should not be allowed to advance new grounds that had not been raised before, that in the circumstances of the case the Board was justified to rely on the available COI before it in assessing his claim, and that its decision was not Wednesbury unreasonable.

4.  Before proceeding to consider the application and the Board’s decision with rigorous examination and anxious scrutiny, and while the factual background and chronology of the applicant’s claim had already been set out in my earlier decision granting leave to his application, it would still be necessary to refer to some of the relevant details here, and as submitted by his counsel, this case of the applicant is unusual from the majority of similar applications both as to his background and the nature of the risks which he claims to fear if refouled to Vietnam.

BACKGROUND OF THE APPLICANT

5.  The applicant was born in southern Vietnam in 1979 where his father was during the Vietnam War in the 1960s/70s a soldier in the army of the then American backed South Vietnam fighting against the communist regime of North Vietnam.  After the latter won the war and united the country as the Socialist Republic of Vietnam, his parents fled from the resultant purge against South Vietnamese and in particular those who had fought against the communist regime of the north, and after his birth his parents placed him in the care of a relative whom he used to call his adoptive father and disappeared, never to be heard of again by the applicant.

6.  In 1991 when the applicant was about 12 years old, his adoptive father asked a friend to bring him onto a boat to travel together with other Vietnamese to Hong Kong where they were colloquially known as the “Boat People”, and were subsequently detained in the Whitehead Detention Centre pending either repatriation to Vietnam or resettlement in other countries.

7.  When he was about 15 the applicant was involved in a fight in the detention center when one of his fellow Vietnamese inmates was killed, for which the applicant was subsequently charged and convicted for murder, and was sentenced to life in prison which was subsequently on appeal reduced to a fixed term of 29 years due to his age factor.

8.  During early stage of his imprisonment the applicant was involved in two further fighting incidents for which he was convicted for assaults occasioning actual or grievous bodily harm and was given further terms of imprisonment.

9.  Eventually he settled down in prison and started attending classes for Chinese, English and accounting for which he sat for and passed two of the subjects in the then Hong Kong Certificate of Education Examination.  He also learnt skills in book-keeping, printing, hair styling and sewing, and became a Christian, with jobs and supports offered by fellow Vietnamese residents in Hong Kong upon his release from prison due in 2016.

THE APPLICANT’S NON-REFOULEMENT CLAIM

10.  Upon his release from prison, the Immigration Department on 29 June 2016 issued a deportation order against him, and has since detained him at the Castle Peak Bay Immigration Centre (“CIC”) pending the determination of his non-refoulement claim for protection subsequently raised by him on the basis of the following risks of harm to him if refouled to Vietnam:

(1) that he would be at risk of persecution as his biological father was a soldier who fought for South Vietnam against the Communist Regime of North Vietnam;

(2) that he would be at risk of being killed by the family of the murder victim in revenge;

(3) that he would be at risk of being prosecuted for having left Vietnam without official permission; and

(4) that he would be at risk of double jeopardy for being punished for the murder which he committed in Hong Kong.

THE DIRECTOR’S DECISION

11.  By a Notice of Decision dated 1 March 2017 the Director rejected his claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) 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”).

12.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that the claimed risk of harm upon his return to Vietnam is real and foreseeable due to the absence of past ill-treatments from the Vietnamese government or the family of the murder victim, that there was no evidence that the applicant’s father was a South Vietnamese soldier or that the Vietnamese authority would be able to connect the applicant to his father, that the risk of double jeopardy of being prosecuted by the Vietnamese government again for the murder would fail as its reliance is excluded by section 11 of the HKBOR, and that reliable COI show that reasonable internal relocation alternatives are available in Vietnam with a large population of 94 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult to move to other part of Vietnam in large cities such as Ho Chi Minh City where it would be difficult if not impossible for the family of the murder victim to locate him.

APPEAL TO THE BOARD

13.  On 13 March 2017 the applicant lodged an appeal to the Board against the Director’s decision, and it would be relevant at this stage to set out his grounds of appeal which were essentially that the Director had failed to take into consideration the prison conditions in Vietnam if he was to be examined for his penal liability for the murder committed in Hong Kong upon his return to Vietnam [B1/3/85]:

“ The Case Officer erred in Paragraph 15.2 when he concluded the following regarding Article 6 of the Penal Code of Vietnam: ‘in other words, even if you are prosecuted and punished by the Vietnamese government for your murder committed in the HKSAR when you return to Vietnam, it will not be a matter of death or alive.’ The Case Officer did not take into consideration the prison conditions in Vietnam. Overcrowding, insufficient diet, lack of access to potable water and poor sanitation remained serious problems in the prisons of Vietnam. Prisoners are forced to work and are punished if they refused to work. Prisoners are deprived of reading or writing materials. They did not have the right to practice their religion. Prisoners received benefits by paying bribes to prison officials. Deaths resulted from lethal force by authorities. Please see attached excerpts from Country Reports on Human Rights Practices for 2015-Vietnam from the U.S. Department of State 2015.”

14.  Attached to his Notice of Appeal were also some COI materials in relation to the issues of arbitrary arrest or detention as well as the prison conditions in Vietnam which were included in the hearing bundle for his appeal before the Board [B1/3/86 – 87].

15.  The Director in response also conducted further research on the COI and inserted additional COI in the hearing bundle for the appeal before the Board, for which the applicant attended two oral hearings on 20 and 21 June 2017 with legal representation during which he gave evidence and answered questions put to him by the adjudicator for the Board and with submissions made on his behalf by his lawyer from the Duty Lawyer Service.  On 29 June 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

16.  In its decision the Board rejected all the four risks relied on by the applicant for the reasons as summarized in my decision of 29 June 2018 [10], and for the present purpose it would be relevant to recite them here as follows:

“ (1) Risk of harm because his father fought against the communist:

The Board found that the applicant did not know much about his biological father, that everything he knew about him had been told to him by his adoptive father, that he did not adduce any evidence to show that the Vietnamese government would even regard his biological father to be a person of interest, that there was very little evidence available in support of this alleged harm, the Board therefore concluded that the available evidence does not support that the feared harm may or will occur (paragraph 37).

(2) Risk of harm from the family of the murder victim:

The Board found that the applicant did not know very much about the victim’s background or family, that he did not know if his family members had returned to Vietnam or migrated abroad or that over 20 years after the crime that the family still harbored ill-will towards him, and the Board therefore considered that the available evidence does not support that the feared harm may or will occur (paragraph 38).

(3) Risk of harm for having left Vietnam illegally:

The Board found that while Article 91 of the Penal Code of Vietnam provides that those who flee abroad or defect overseas with a view to opposing the government shall be sentenced to between three to twelve years of imprisonment, and in the case of committing particularly serious crimes the offenders shall be sentenced to between twelve and twenty years of imprisonment or life imprisonment, the Board considered that various articles in the Penal Code such as Article 8 which gives the definition of ‘crime’ as an ‘act dangerous to the society prescribed in the Penal Code’ must mean Vietnam society, while other articles indicate only those persons aged 16 or older who commit acts dangerous to Vietnamese society or those aged 14 or older who have intentionally committed particularly serious crimes will bear penal liability, and that the board considered the fact that the applicant left Vietnam when he was 12 years old could not be regarded as capable of forming the necessary penal liability capacity (paragraphs 39 – 47).

(4) Risk of double jeopardy:

            As for the applicant’s alleged fear of being punished for having committed murder in Hong Kong and would be at risk of double jeopardy as Article 6 of the Penal Code provides that Vietnamese citizens who commit offences outside the territory of Vietnam may be examined for penal liability, the Board noted that the Article uses the word ‘may’ be examined and not ‘shall’ be examined, that it was never referred to any provision in the Penal Code which would make a murder in Hong Kong punishable in Vietnam, that it was committed when the applicant was very young, that he has paid for his crime in prison in Hong Kong, that the crime poses no danger to the Vietnamese society, and that the applicant has rehabilitated himself, hence the Board found little risk that he may even be examined pursuant to the Penal Code, let alone to be punished by it (paragraphs 48 – 50).”

APPLICATION FOR JUDICIAL REVIEW

17.  On 15 December 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward his grounds which can be summarized as follows:

(1) As against the Director: failure to properly consider or place sufficient weight in his consideration of the risks to the applicant upon his return to Vietnam where he had left at the age of 12 and with which he has since no connection whatsoever and that he would face all sorts of risks under the current legal and/or administrative system in Vietnam;

(2) As against the Board: failure to make sufficient enquiries into COI in its consideration and assessment of his claim.   

GROUNDS FOR JUDICIAL REVIEW OF THE BOARD’S DECISION

18.  The applicant has since abandoned his challenge of the Director’s decision, and for the reasons given in my decision, I extended time for his application and granted leave for him to apply for judicial review of the Board’s decision, for which he now seeks to rely on the following grounds as summarized in the Skeleton Argument of his counsel Mr Anson Wong:

(1) that the Board failed to meet the high standards of fairness in conducting its enquiries in respect of the Penal Code of Vietnam;

(2) that the Board failed to take into account relevant COI materials including the arbitrary nature of the regime and arresting procedures and the poor prison conditions in Vietnam and to carry out a proper analysis; and

(3) that in any event the Board’s decision is on the materials before it Wednesbury unreasonable.

PRELIMINARY ISSUE

19.  Before proceeding to consider the applicant’s arguments for each of these grounds, it would be necessary to first deal with a preliminary issue raised by the Director at the hearing regarding these grounds, of which Mr Richard Yip argues for the Director as new grounds advanced by the applicant only by way of submissions and which had never been raised before nor were they stated in his Form 86 or its amended version.  

20.  The Director’s complaints are essentially that in his Amended Form 86 the applicant never raised the point that the Board failed to meet high standards of fairness in conducting its enquiries in respect of the Vietnamese Penal Code which is a challenge on procedural fairness of the hearing before the Board, or that the Board should have obtained expert evidence on Vietnamese law and on the proper interpretation of the relevant Penal Code in assessing his alleged risks, and that there was also no challenge in the Amended Form 86 that the Board’s decision was Wednesbury unreasonable either.

21.  As such Mr Yip argues that as the applicant did not even try to make a late application to re-amend his Amended Form 86, and to allow him to slip in such new grounds by way of submissions is unfair to the Director and is bad case management, as it was held in Oriental Generation Ltd v Town Planning Board [2013] 6 HKC 364 that the conditions of Ladd v Marshall must be satisfied for new evidence to be admitted on appeal.

22.  That was a case involving an application by the Town Planning Board (“TPB”) to adduce new evidence to support its position in refusing to consider raising the building height restriction, and in allowing the appeal and granting TPB’s application upon finding that it had satisfied the conditions of Ladd v Marshall, the Court of Appeal also held that justice demands that the court should be given the benefit of all highly relevant material particularly when public interest is involved [34]:

“ Besides, the issues in the appeal focus on questions of arbitrariness, rationality and necessity of the decision-making process of the Board. Information on the reasoning process and the matters taken into consideration by the Board are clearly of importance in resolving important legal issues in the present proceedings. Justice demands that this court should be given the benefit of all highly relevant material particularly when one takes into account the public interest involved in the present litigation.”

23.  Where in a case of non-refoulement claim, as in here, when according to the claimant that “life and limb are in jeopardy and [that the claimant’s] fundamental human right not to be subjected to torture is involved”, high standards of fairness require that the claimant be given every reasonable opportunity to establish his claim, as it was held by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, when Chief Justice Li stated as follows:

“ 43. The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter: R v Home Secretary, ex p Doody [1994] 1 AC 531 at p.560D–G.

44. Here, the context is the exercise of the power to deport.  The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned.  To him, life and limb are in jeopardy his fundamental human right not to be subjected to torture is involved.  Accordingly, high standards of fairness must be demanded in the making of such determination.” 

24.  As for the courts’ role in judicial review of such official determination, the Chief Justice went on to state:

“ 45. It is for the Secretary to make such a determination. The courts should not usurp that official’s responsibility. But having regard to the gravity of what is at stake, the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met. R v Home Secretary, ex p Bugdaycay [1987] 1 AC 514 at p.531E–G. If the courts decide that they have not been met, the determination will be held to have been made unlawfully.”

25.  Further, fairness also means that an opportunity to make representations is an important requirement in most if not all situations, as Cheung CJHC (as he then was) stated in ST v Betty Kwan [2014] 4 HKLRD 277 at para 25:

“ … an opportunity to make ‘worthwhile representations’ (Ex p Doody, at 560G), or ‘effective representations’ ([R (West) v Parole Board [2005] 1 WLR 350], at [35]), is an important requirement of fairness in most if not all situations:

… (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.

(Ex p Doody, at 560F–G/H).”

26.  In the applicant’s case, it was clearly part of his complaints that there was inadequacy in the scope of the COI that were relied upon by the Board as to its understanding of the interpretation of the Vietnamese Penal Code relevant to his claim, as the applicant so stated in paragraph 6 of his proposed grounds for his leave application dated 20 March 2018 via his former counsel Mr Hunter as follows [A3/22]:

“ In respect of all of these risks, the Adjudicator relied on COI and especially upon interpretations of the Penal Code of Vietnam. It is submitted that the COI relied upon was not wide enough in scope and led to a very narrow understanding of both the law of Vietnam and the manner in which the authoritarian nature of the government creates an arbitrary environment. Further, a more extensive examination of the sources would have shown that someone in the Applicant’s position was most definitely in personal danger of being targeted by the government and its actors. I will consider each of these factors in turn.”

27.  Following on from that, the applicant proceeded to criticize the Board for relying only on the bare provisions of the Penal Code in assessing his alleged risks, as he stated in paragraph 12 of his proposed ground [A3/24]:

“ In section 45 of the decision the TCAB concludes on the bare provisions of the Penal Code that the Applicant would not be liable under these laws because:

a. He must have caused acts dangerous to society

b. He must have been over 14 when he committed those acts and was 12 when he fled

c. He must have been aware that his act was dangerous to society and intended them to be so”

28.  The applicant then specifically referred to various articles of the Penal Code which he argued that the Board had failed to consider at all or adequately in its assessment of his claim [A3/25]:

“ 21. The TCAB was wrong in their deduction in paragraph 49 of the decision where it is said ‘… it must first be shown that the Appellant has committed a crime defined by the Penal Code’ and concludes there is no provision which makes murder in Hong Kong punishable in Vietnam. The Penal Code at Article 93.1: Those who commit murder in one of the following cases shall be sentenced to between twelve and twenty years of imprisonment, life imprisonment or capital punishment. One of those cases being yet again a vague catch all provision at Article 93.1.p: Murder of people for despicable motivation. Also, the similarly vague Article 93.2: Those committing crimes which do not fall into those cases stipulated in Clause 1 of the Article, shall be sentenced to between seven and fifteen years of imprisonment. Taken with Article 6.1: Vietnamese citizens who commit offences outside the territory of the Socialist Republic of Vietnam may be examined for penal liability in Vietnam according to the Code and taking into consideration the fact that the man the Applicant killed was also a Vietnamese there is every reason to suppose that the Applicant might be subject to retrial in Vietnam.”

29.  It is therefore plain from the above that the applicant did at his leave application already make it clear that it is part of his proposed grounds that the Board failed to make sufficient enquiries in respect of the relevant articles of the Penal Code in its assessment of his claimed risks, whilst under Ground (3) he did also raise the issue that on the basis of the COI materials before it the Board’s decision was Wednesbury unreasonable [A3/27]:

“ 26. The Adjudicator takes a narrow view of the danger to life and the possibility of torture based on a superficial interpretation of the COI. In paragraphs 19 and 30 of the decision the position taken is that the applicant must wholly prove his case yet in paragraph 24 it is accepted that this should be ‘a joint endeavor in achieving a fair and just result’. While it is true that the Applicant must prove his case, it is also incumbent on the TCAB to make investigation and not act passively. The Board is not prosecutorial it should be neutral. The Adjudicator accepts that extra-judicial and arbitrary killings and torture do occur in Vietnam (paragraph 57 decision) but refuses to accept the Applicant personally is at high risk despite the fact that, as stated above, there is evidence to show the danger returned refugees are exposed to in Vietnam. This, too, is submitted to be Wednesbury unreasonable in the circumstances.”

30.  As regards the Director’s complaint that the applicant did not mention in his Amended Form 86 that he intended to challenge the Board’s Decision on the basis that it referred to Articles 12 and 13 of the Penal Code on its own motion, Mr Wong at the start of the hearing did confirm for the applicant to abandon this ground or complaint, which concession has been accepted by the Director.  As such this is no longer an issue between the parties that would require the Court’s attention. 

31.  In the premises and for the reasons given, and upon Mr Yip’s confirmation that the Director has not been so prejudiced in terms of time or opportunity to make reply or counter-argument to those points raised by the applicant, I agree that the applicant should be allowed to proceed with his application on the basis of those stated grounds as set out in his Skeleton Submissions except for the one which has now been abandoned or withdrawn as noted above, and for which I shall now turn to consider his first ground.

GROUND 1:  FAILURE TO CONSIDER RELEVANT PENAL LIABILITIES     

32.  For this ground the applicant argues that high standards of fairness requires the Director or the Board to (1) conduct investigation and obtain relevant information and materials on general country conditions, and (2) to probe further into an answer or omission, depending on the facts and issues raised in a case, as ultimately the matter boils down to common sense and fairness, and that the exercise of determining whether the claim is valid must be one of ‘joint endeavour’, as it was so held in TK v Jenkins [2013] 1 HKC 526 at pp 22 – 25. 

33.  It is against these principles that the applicant submits that the Board in the present case failed to consider Articles 93 and 274 of the Penal Code of Vietnam in its determination of the risk of harm faced by the applicant upon his refoulement to Vietnam.

Article 93 of the Penal Code

34.  As already referred to above, Article 93, which applies to the crime of murder, provides as follows [LA/3]:

“ 1. Those who commit murder in one of the following cases shall be sentenced to between twelve and twenty years of imprisonment, life imprisonment or capital punishment:

…

2.  Those committing crimes which do not fall into those cases stipulated in Clause 1 of this Article, shall be sentenced to between seven and fifteen years of imprisonment.

3.  Offenders may also be banned from holding certain posts …”

35.  Given the fact that he had committed the murder of a fellow Vietnamese in Hong Kong, Mr Wong for the applicant submits that Article 93 should have been taken into consideration by the Board, and also to be considered together with Article 6 which gives effect to the Penal Code on criminal acts committed outside the territory of Vietnam and which provides that “Vietnamese citizens who commit offences outside the territory of the Socialist Republic of Vietnam may be examined for penal liability in Vietnam according to this Code” [B1/125], and thus there is every reason to suppose that the applicant may be subjected to retrial in Vietnam for the murder committed by him in Hong Kong.

36.  In any event, Mr Wong submits that it is at least unclear on the evidence before the Board as to whether under the law of Vietnam (being a civil law jurisdiction) that there is any presumption against the extraterritorial application of the criminal law (especially in relation to murder) as in common law, which highlights the importance of obtaining expert evidence in the peculiar circumstances of the applicant’s case, and which he submits that high standards of fairness would require the Board to do, or at least to obtain relevant information and materials on the proper interpretation of the relevant Articles of the Penal Code, such as also Article 274.

Article 274 of the Penal Code

37.  As regards Article 274, Mr Wong submits that despite the fact that relevant submissions were made on behalf of the applicant in his appeal, the Board failed to consider this article which provides that [B1/3/203]:

“ Those who illegally leave or enter the country or stay abroad or in Vietnam, have already been administratively sanctioned for such act but continue the violation, shall be subject to a fine of between five million dong and fifty million dong or a prison term of between three months and two years.”

38.  In his appeal before the Board, Mr Wong submits that as the applicant did in his Further Submissions dated 16 May 2017 in paragraph 9 specifically refer to Article 274 and expressed his concern that he would at least be detained and questioned under that article of the Penal Code upon his return to Vietnam [B2/293], but the Board did not refer to it at all in its decision in assessing the applicant’s claimed risks.

39.  The applicant therefore submits that high standards of fairness required that the Board should have obtained relevant information and materials on the proper interpretation of the relevant Articles of the Penal Code, and that it should also have obtained expert evidence in the particular circumstances of this case, having regard to (1) the nature of the question of foreign law raised, (2) the nature of the foreign legal system, (3) the nature of the materials relied on, and (4) the importance of dealing with cases at proportionate cost.   

40.  Mr Wong further submits that in the following peculiar circumstances of the applicant’s case that the aid of foreign law expert is necessary in order to meet the high standards of fairness:

(1) that the Board was not dealing with legislation enactments written in English in another common law jurisdiction, but rather an English translation of a criminal code of a civil law jurisdiction that was not even produced in full before it;

(2) that the question before the Board was not straightforward but involved an assessment of the applicant’s potential criminal liability which required the interpretation of multiple provisions in the Penal Code; and

(3) that the Board apparently had difficulty in understanding a technical but important phase “examined for penal liability” in Article 6 of the Penal Code which was central to the applicant’s case when the Board was clueless as to (1) what is the nature, meaning and process of that phase, and (2) whether it is necessary for an offender to undergo an examination for penal liability before going to trial or being convicted. 

41.  Mr Wong submits that despite such difficulties, the Board simply jumped to its own conclusion that penal liability examination is “a process where the government authority decides whether or not to charge the alleged offender with a criminal offence” based on its own so-called “common sense reading”.  [B1/3/13]

42.  Mr Wong further argues that the need for foreign law expert evidence is reinforced by the Board’s own unsatisfactory reading of the Penal Code as follows:

(1) that the Board found that the focus of the Penal Code is “on prevention rather than punishment” which is clearly contradicted by one of the handling principles in Article 3(2) which is to severely penalize, inter alia, wrong-doers; and

(2) that the Board wrongly (a) assumed that the offence under Article 91 of the Penal Code is not a continuing offence, and (b) ignored Article 274 of the Penal Code that such interpretations failed to appreciate that these provisions effectively mean that fleeing the country is a political offence regarded as a crime against the state, and that the “actus reus” is not simply the moment of fleeing but also being an émigré in a period of exile that it is inevitable in such a regime that the longer the exile the more suspicion the émigré will be held, and hence it is on such erroneous basis that the Board arrived at the conclusion that the applicant had no real risk of being examined because “he could not be regarded as capable of forming the necessary penal liability capacity” in its decision.      

The Director’s arguments

43.  The Director argues that high standards of fairness do not require the Board to obtain expert evidence on the proper interpretation of the Penal Code in the present case, as firstly, the standards of fairness are not immutable, and that the requirement of fairness are flexible and closely conditioned by the legal and administrative context: ST v Betty Kwan [2014] 4 HKLRD 277 at §23, and thus high standards of fairness would not require the Board to obtain expert evidence whenever an issue of foreign law arises.

44.  Secondly, the Director argues, as with other procedural safeguards such as whether to have an oral hearing, that the Board can exercise its own judgment guided by common sense and fairness to decide whether to call for expert evidence depending on the circumstances of the case: see KV (Sri Lanka) v Secretary of State for the Home Department [2018] 4 WLR 166.

45.  Applying these principles to the present case, Mr Yip for the Director submits that the Board was entirely justified in not obtaining Vietnam law expert evidence for the following reasons:    

(1) the meaning of the relevant provision in the Penal Code is clear from the language itself, and the Board was entirely competent to interpret the Penal Code without the help of expert;

(2) the applicant did not show how the fact that Vietnam is a civil law country would have affected the literal meaning of the Penal Code, and that if anything, it is more appropriate to interpret a statute through its plain meaning in civil law jurisdiction than common law jurisdiction, as the former generally do not rely on case law for interpretation of statutes;

(3) there is nothing complicated in the interpretation of the Penal Code concerning the risk of prosecution for persons who left Vietnam illegally;

(4) the applicant was legally represented at the hearing before the Board and could have obtained Vietnamese law expert evidence if necessary;

(5) the applicant was content to advance his case based on the English translation of the Penal Code and made full submissions on it without expert evidence until the Board had made an interpretation not in his favour that he now argues that high standards of fairness require the Board to obtain expert evidence on its own initiative; and

(6) that the assessment of a non-refoulement claim is a joint endeavour that the applicant could not sit back and require the Board to obtain expert evidence on its own initiative when the same was not required by the applicant would be disproportionately shifting the burden to the Board.   

46.  Mr Yip therefore argues that the applicant had been given every reasonable opportunity to establish his claim, and that the lack of expert evidence did not prevent his counsel to successfully identify the relevant provisions and make full arguments thereon before the Board, and that given the clear meaning of the relevant provisions in the Penal Code, expert evidence would not have been necessary, and had not affected the proper assessment of his claim. 

47.  As for the particular articles, Mr Yip points out that the applicant never put Article 93 at issue either at the screening interview before the Director or in his appeal before the Board, hence it is therefore not open to him to now rely on this provision to argue that the Board failed to consider it when it was not alerted to it in the first place, which is clearly against the principles of joint endeavor and that the applicant bears the burden of proof in his non-refoulement claim.   

48.  In any event, Mr Yip submits that one fails to see how Article 93 could advance the applicant’s case that he would be prosecuted in Vietnam again for the murder he committed outside of Vietnam and for which he had been convicted and already completed his sentence.

49.  As for Article 274, Mr Yip argues that the mere fact that the Board did not mention the article does not mean that it did not take it into account, as it clearly did find that the applicant would not be at risk of prosecution for having left Vietnam without official permission on the basis that (a) the Penal Code is based on fault of a culpable mind, and (b) the applicant was only 12 years old when he left Vietnam and could not be regarded as capable of forming the necessary penal liability capacity ([45] of its decision) [B1/12].     

50.  In any event, Mr Yip argues that Article 274 simply does not apply to the applicant’s case as its pre-condition is that the person must have already been sanctioned administratively for the act of leaving Vietnam illegally, whereas when the applicant left Vietnam at the age of 12, there was no evidence that he had been sanctioned for such act, and hence Article 274 is simply not applicable to him, and that the Board is therefore not Wednesbury unreasonable in not considering it in its decision.

51.  Overall, Mr Yip submits for the Director that that the Board had already consulted a wide range of COI that Article 274 would not have added any new dimension to Article 9 which was the main article relied on by the applicant for the prosecution risk and which had already been considered by the Board, and that Article 274 would not have made any difference to the conclusion reached by the Board that the applicant was not subject to any risk of prosecution for leaving Vietnam when he was 12.

Discussions

52.  It is clear to me that the fundamental questions to be asked of this Ground 1 of the applicant are:

(1) Did the Board fail to conduct sufficient enquiries in respect of the relevant Penal Code including obtaining expert evidence in interpretation in its determination of the applicant’s claimed risks, which is a question of fact;

(2) If it did not do so at all or sufficiently, was it a failure to apply high standards of fairness on its part, which is a question of law.

53.  To answer the first question, it is of course necessary to consider exactly what the Board did regarding the Penal Code relevant to the applicant’s claim in his particular circumstances by examining the Board’s decision, with the relevant part starting from paragraph 39 in respect of the risk of harm for having left Vietnam illegally, in which the Board recorded:

“ The Appellant claimed that if refouled, he will be at risk of persecution for having left Vietnam without official permission. In support of this claim, the Appellant referred to Article 91 of the Penal Code of Vietnam which provides:

‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration

(1) Those who flee abroad or defect overseas with a view to opposing the people’s administration shall be sentenced to between three to twelve years of imprisonment.

(2) Organizers, coercers and instigators shall be sentenced to between five and fifteen years of imprisonment.

(3) In the case of committing particularly serious crimes, the offenders shall be sentenced to between twelve and twenty years of imprisonment or life imprisonment.’”

54.  The Board then referred to the applicant’s evidence regarding this fear of his upon return to Vietnam as follows:

“ 40. During the Hearing, the Appellant fleshed out in details of this fear. The Appellant told the Board that some Vietnamese people he met in Stanley Prison had experienced going through examination for penal liability. He had heard from these Vietnamese prisoners that all who left Vietnam without permission would be detained and examined for penal liability. He therefore feared that he would be imprisoned for leaving the country illegally. The Appellant heard that the police were corrupt, and would cause trouble to those who left the country. He said that he had a ‘phobia’ about the prospect of being detained and interrogated. He wondered how he would be able to survive without family or friends in Vietnam. He had heard that if the family members of the detainees paid, then the detainees would be released after a few days or even sooner. He heard that conditions in detention were ‘tough’. He was worried because he had no relatives in Vietnam to pay for his early release from detention.

41.       The Appellant told the Board that some of these Vietnamese people left the country illegally in order to get the HIV treatment in Hong Kong that they were unable to get in Vietnam; or to get medical treatment they could not afford to pay for in Vietnam. The Appellant told the Duty Lawyer that all of them left Vietnam as adult.”  

55.  On the basis of such fear the Board proceeded to look for definition or meaning of the various relevant terms in the Penal Code and made its findings [45] summarized by the applicant as follows:

(a) The focus of the criminal law is on prevention rather than punishment (Foreword of the Penal Code);

(b) Crime is defined as an act dangerous to the Vietnamese society (Article 8);

(c) Only those who committed acts dangerous to Vietnamese society will bear penal liability (Articles 9 and 10);

(d) Offenders must have penal liability capacity which include those aged full 16 or older will be liable for all crimes, and those aged 14 but under 16 shall be liable for very serious crimes intentionally committed (Article 12); and

(e) Offenders must have acted in ways dangerous to Vietnamese society and are being at fault (Articles 9 and 10).

56.  Based on such finding the Board concluded that there would be no risk of the applicant being examined for penal liability as it explained in paragraph 46 of its decision:

“ 46. Therefore, on a common sense reading of the Penal Code, it appears to the Board that an ‘examination of penal liability’ is a process where the government authority decides whether or not to charge the alleged offender with a criminal offence. Since Article 6 stipulates that Vietnamese citizens who commit offences whilst outside of Vietnam may be examined for the penal liability, a fortiori there should be no real risk that the Appellant may even be examined at all. The authority must take into consideration that he was only 15 years old when he committed the offence; he has served over 20 years in jail for the crime; he has expressed remorse; he has taken steps to rehabilitate himself; and the crime committed in Hong Kong does not affect Vietnamese society in any way. Even if the Appellant is made to undergo an examination, the authorities will soon discover the elements just mentioned. Further there should be no real risk that the authority conducting the examination will demand a bribe from the Appellant. Common sense dictates that the corrupt official intending to extort a bribe must see the futility of demanding one from a detainee with no friends or family in Vietnam to come to pay the bribe.”

57.  For similar reasons the Board also found that the applicant would not be at risk of double jeopardy of being punished again for having committed the murder in Hong Kong, as it explained as follows:

“ 48. The Appellant alleged that he would be at risk of double jeopardy, because he will be punished for having committed murder in Hong Kong. He relied on Article 6 of the Penal Code which provides: ‘Article 6 — The effect of the Penal Code on criminal acts committed outside the territory of the Socialist Republic of Vietnam.’ Section 1 reads: ‘Vietnamese citizens who commit offences outside the territory of the Socialist Republic of Vietnam may be examined for penal liability in Vietnam according to this Code.”

49.  The Board was not referred to any provision in the Penal Code which would make a murder in Hong Kong punishable in Vietnam.  Article 2 of the Penal Code states that: ‘Only persons who have committed crimes defined by the Penal Code shall bear the penal liabilities therefore.’ This indicates that it must first be shown that the Appellant has committed a crime defined by the Penal Code, before considering whether to conduct an examination into penal liability.  It must be pointed out that Article 6 uses the word ‘may’ be examined, it did not use the word ‘shall’ be examined.

50.  Considering that the Appellant’s crime of murder was not committed in Vietnam; and it was committed when he was very young; he has paid for his crime in prison in Hong Kong; the crime poses no danger to Vietnamese society; and the Appellant has rehabilitated himself, the Board finds that there is very little risk that he may even be examined pursuant to the Penal Code, let alone be punished by it.  The Board finds that the evidence adduced falls far short of meeting the high threshold laid down by the CFA in Ubamaka.”

58.  Firstly, there is no question that the applicant, who was legally represented by Duty Lawyer Service in his appeal to the Board, never raised the issue of obtaining expert evidence on Vietnamese law, and of which the Director argues that high standards of fairness did not require the Board to do so in the circumstances of this case, as the Board can and did exercise its own judgment guided by common sense and fairness to decide whether to call for expert evidence in its interpretation of the Penal Code and its relevant articles, which is published in its current version in English on a Vietnamese official government website and relied on by both the applicant and the Board.

59.  In KV (Sri Lanka), supra, where evidence of Sri Lankan law was required to determine whether the appellant would not automatically re-acquire his Sri Lankan nationality if deprived of his British citizenship and thereby rendered him stateless, the English Court of Appeal held that it was entirely proper for the Tribunal to interpret the English translation of the relevant Sri Lankan law without the assistance of expert, as Leggatt LJ stated:

“ 34. … in law as in so many other areas of life, technology advance and the expansion of the internet have in recent years revolutionised the ability to gain access to information. No longer is it generally necessary to consult books in a library in order to conduct legal research. A vast amount of legislation and case law in many jurisdictions is readily available online. Where, for example, the answer to a question of foreign law is to be found in a provision of an enactment which is published in its current version in English on an official website, I can see no reason why a court should not look at the provision without the aid of an expert witness. In such a situation there is no material risk that the provision has been abrogated by subsequent legislation.

35.  In making these observations, I am not encouraging the use of sources such as Wikipedia (which was relied on by the appellant’s lawyers in the FTT in this case) as evidence of foreign law.  But it should, in my view, be a matter for the judgment of the court or tribunal to decide what material to accept in any particular case as evidence of foreign law.  In deciding whether expert evidence is needed, it is relevant to consider not only the nature of the question of foreign law raised, the nature of the foreign legal system and the nature of the materials relied on, but also the importance of dealing with cases at proportionate cost.  With this as with other matters of evidence, a more informal approach may be justified in tribunal proceedings than in court proceedings. …”      

60.  In the present case, as noted above that the Penal Code was relied on by the applicant and was examined by the Board in its official English version obtained from the relevant government website, and as the meaning of the relevant provisions in the Penal Code is clear from the language itself and appears to me straight forward enough for the Board to competently interpret by itself without the aid of an expert, and as the applicant was able to advance his case based on the same English version of the Penal Code and made full arguments and submissions through his lawyer during his appeal hearing before the Board without the need of any expert evidence, I agree with the Director that in the circumstances high standards of fairness did not require the Board to do so for the proper interpretation of the Penal Code.

61.  It does not of course necessarily follow that the Board had correctly interpreted the Penal Code in its assessment of the applicant’s claimed fear of risk of harm, or that it had properly considered all the articles of the Penal Code relevant to the claim, which is essentially the second limb of the applicant’s Ground, as it is quite clear from the decision that the Board, in assessing the risk of double jeopardy for murder, it did not specifically refer to or consider Article 93 which provides for different sentencing for murder ranging from 20 years to life imprisonment and capital punishment upon concluding from those other articles noted above that in view of the fact that the applicant’s crime of murder was not committed in Vietnam, that it was committed when he was very young, that he had served his imprisonment in Hong Kong, and had rehabilitated himself that it found very little risk of him being examined pursuant to the Penal Code upon his return to Vietnam, let alone be punished for it, and hence it found that that the evidence adduced fell far short of meeting the high threshold laid down by the Court of Final Appeal in Ubamaka v Secretary for Security (2012) 15 HKCFAR 743.

62.  To bring such claim of his within the terms of BOR 3 risk, as held by the Court of Final Appeal in Ubamaka, the applicant must establish (i) that the ill-treatment which he would face if refouled to Vietnam attains “a minimum level of severity” and (ii) that he faces a genuine and substantial risk of being subjected to such mistreatment, and that it is clear that a very high threshold must be surmounted to establish each of those requirements.

63.  As to what was required to meet the “minimum level of severity”, Lord Hope of Craighead in R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396, held that it generally involves actual bodily injury or intense physical or mental suffering, and that its assessment is ultimately a matter of judgment, as his Lordship elaborated:

“ 54. … the European court has all along recognised that ill-treatment must attain a minimum level of severity if it is to fall within the scope of the expression ‘inhuman or degrading treatment or punishment’: Ireland v United Kingdom (1978) 2 EHRR 25, 80, para 167; A v United Kingdom (1998) 27 EHRR 611, 629, para 20; V v United Kingdom (1999) 30 EHRR 121, 175, para 71. In Pretty v United Kingdom 35 EHRR 1, 33, para 52, the court said:

‘As regards the types of “treatment” which fall within the scope of article 3 of the Convention, the court’s case law refers to “ill-treatment” that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feeling of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterized as degrading and also fall within the prohibition of article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.’

It has also said that the assessment of this minimum is relative, as it depends on all the circumstances of the case such as the nature and context of the treatment or punishment that is in issue. The fact is that it is impossible by a simple definition to embrace all human conditions that will engage article 3.

55.  So the exercise of judgment is required in order to determine whether in any given case the treatment or punishment has attained the necessary degree of severity.  It is here that it is open to the court to consider whether, taking all the facts into account, this test has been satisfied.”

64.  As to the degree of risk that must be established, the Court of Final Appeal in Ubamaka went on to hold that the applicant must show substantial grounds for believing that if deported he faces a “real risk” of being subjected to torture or CIDTP, as Ribeiro PJ elaborated:

“ 174. As to the degree of risk that the deportee must establish, it has variously been put as a requirement that he must show ‘substantial grounds … for believing’ or ‘strong grounds for believing’ that if deported (or extradited) he faces a ‘real risk’ of being subjected to torture or CIDTP.

175. Recently, the Strasbourg Court in Al Husin v Bosnia and Herzegovina, endorsed the following approach:

The assessment of the existence of a real risk must be rigorous (see Chahal v the United Kingdom, 15 November 1996, §96, Reports of Judgments and Decisions 1996 V). As a rule, it is for applicants to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to art.3 (N v Finland, no 38885/02, §167, 26 July 2005). Where such evidence is adduced, it is for the Government to dispel any doubts about it. The Court will take as its basis all the material placed before it or, if necessary, material obtained on its own initiative.

176. In the Strasbourg context, the Court went on to state that the Court should assess the risk at the time of the proceedings, taking account of information that has come to light after the deportation decision was taken in order to ensure that the Court is able to make a ‘full and up-to-date assessment’ of the current situation.”

65.  In the present case, the Board found very little risk that the applicant may be examined by the Vietnamese authorities for the reasons given in its decision and noted above, and while it was entitled to rely on those matters mentioned in its assessment, the fact that it was one based essentially on probability and on the assumption that the Vietnamese authority would also rely on the same consideration not to subject the applicant to examination for the murder committed in Hong Kong, but given the gravity of the offence committed by the applicant and the fact that he had been out of the country for such a long period of time that it seems to me that there would be much more than “little risk” that he would be examined for penal liability under Article 6 of the Penal Code upon his return to Vietnam.  It is in my judgment a reasonable probability that cannot be ignored or excluded altogether that the Board should have proceeded to consider and assess the risk which the applicant claims to fear arising from such examination or prosecution. 

66.  In fact, high standards of fairness require as much, given the applicant’s claim under BOR 3 risk (CIDTP) based on the double jeopardy ground with the possibility of a life imprisonment or even the death penalty if convicted under Article 93 of the Penal Code, as well as the ill-treatment to which he feared to be subjected while in detention and/or in prison in conditions as described in the available COI before the Board, and of which the Board should have proceeded to take them into consideration in its determination of the applicant’s claim. 

67.  In Ubamaka where the appellant from Nigeria raised similar ground that he risked being prosecuted again if refouled for his drug trafficking offence committed in Hong Kong, for which he had been imprisoned for 16 years, under the Nigerian law that he would be prosecuted again for that offence and if convicted liable to imprisonment for a term of five years, the Court of Final Appeal found that his case on CIDTP on the ground of double jeopardy failed as he failed to meet the substantial risk and minimum level of severity requirements, as Ribeiro PJ elaborated:

“ 177. The appellant’s case on CIDTP is based once again on the risk of double jeopardy. He contends that implementation of the deportation order would expose him to a risk of being re-‌prosecuted and punished afresh under the Nigerian law because of his drug-trafficking activities for which he has already been convicted and imprisoned for 16 years in Hong Kong. It is the impact on him of the prospect of such fresh proceedings and punishment which he says would constitute CIDTP. Reyes J accepted his submission and the appellant invited the Court to hold that the Court of Appeal was not entitled to reverse the Judge’s finding.

178. In reaching his conclusion that the appellant had successfully established a potential violation of BOR art.3, Reyes J took into account the appellant’s age; the fact that he had spent 16 years in prison and had ‘expiated his crime’; and the fact that while had had incurred 11 disciplinary reports between 1994 and 2004, the appellant had ‘made an effort to turn his life around’, attending religious gatherings and becoming a model prisoner. His Lordship’s view was that the risk of being ‘detained, tried and sentenced to at least 5 years’ imprisonment in relation to the same offence’ would ‘self-evidently constitute a severe mental and psychological blow’ to him, which ‘could well induce fear and anguish in him as a human being’. He added:

… having regard to the number of years Mr Ubamaka has already spent in prison, it would obviously be severely frustrating to him as an individual and his efforts to improve himself to have to face yet another trial and imprisonment in relation to precisely the same conduct.

179. Reyes J concluded that the aforesaid facts established that deportation would indeed constitute CIDTP so that the deportation order should be quashed …

180. The Court of Appeal reversed Reyes J because it did not:

… consider the risk of prosecution and punishment under s.22 of the Act in the present case gives rise to anything approaching the level of intense physical or mental suffering or humiliation necessary to constitute cruel, inhuman or degrading treatment.

181. I respectfully agree with the Court of Appeal’s conclusion. Whether the ill-treatment allegedly feared is of a nature which attains the minimum level of severity required; and whether the appellant has established substantial grounds for believing that, if deported, he would face a real risk of being subjected to such mistreatment, is a matter of judgment to be exercised with guidance from the relevant jurisprudence. In my opinion, the appellant falls far short of meeting both the substantial risk and minimum level of severity requirements.

182. I do not think that the ‘severe mental and psychological blow’ and the severe ‘frustration’ that he might experience at the prospect of facing ‘yet another trial and imprisonment in relation to precisely the same conduct’ as found by the Judge comes anywhere near to meeting the threshold requirements discussed in Section J.2 above. Reyes J cited Soering but his Lordship does not appear to have focused on the very high threshold of the requirements for establishing CIDTP, exemplified by instances where the mistreatments involves ‘actual bodily injury or intense physical or mental suffering’ or mistreatment of an intensity ‘capable of breaking an individual’s moral and physical resistance’ emphasised in the cases cited above. Moreover, it may be that Reyes J was influenced by his erroneous belief that the appellant faced a minimum of five years’ imprisonment if convicted. The Nigerian law does not prescribe any such minimum.

183. So far as the level of risk is concerned, there was a dearth of evidence that the appellant would be prosecuted, and if prosecuted and convicted, as to what sentence the Nigerian court was likely to impose. That is perhaps not surprising since in a letter from the Director of Immigration to the appellant dated 14 August 2008, which the appellant placed before the Court, it appears that there were very few convictions to date. …

184.  As the Strasbourg Court pointed out in Al Husin, it is generally for the applicants to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to art.3.  The Court is also entitled to take account of the latest available evidence and so was entitled to consider the contents of the Director’s letter mentioned above.  In the circumstances, the evidence fell far short of establishing substantial grounds for believing that the appellant faces a genuine risk of being subjected to CIDTP if the deportation order is carried out.  The CIDTP must therefore fail.”                

68.  His Lordship however noted that for some reason a decision was deliberately taken not to introduce any allegations concerning ill-treatment in Nigerian prisons or any grounds other than the “anguish” referred to above, and hence there was no basis to remit that issue to the Director for consideration:

“ 187. … another point which Mr Gordon seeks to raise for the first time in this Court relates to what he describes as ‘a remedy’. He submits that if the Court is not satisfied that the facts presently relied on constitute CIDTP, it should order the case to be remitted to the Director for him to consider whether CIDTP is made out on the basis of a different set of facts relating to conditions in Nigeria prisons which are said to be appalling.

188. This suggestion has in fact nothing to do with any ‘remedy’ and I see no conceivable basis for making such a remitter. In Reyes J’s judgment, he makes the following observation:

In the hearing before me, Mr. Pun has studiously confined his submissions on the CAT to the anguish that would afflict Mr Ubamaka if he were tried a second time in Nigeria. I note, however, that Mr Ubamaka has also based his CAT claims on the possibility of ill-treatment by prison officers in Nigeria.

189. It therefore appears that the decision was deliberately taken not to introduce any allegations concerning ill-treatment in Nigeria prisons or indeed, any grounds other than the ‘anguish’ referred to.  That was presumably thought to be a good tactic for whatever reason.  Consequently, there has never been any suggestion that the Director has wrongly failed to take account of prison condition and accordingly no basis for remitting the issue to him for consideration.” 

69.  In the applicant’s case, as noted above, he did raise the issue of prisons conditions in Vietnam in his appeal to the Board [B1/85], and of which his counsel in his leave application submitted that if he is indeed retried and convicted, he faces a prison regime which would amount to CIDTP and would bring him within the ambit of BOR 3 risk, and it therefore fell on the Board to consider the Ubamaka criteria of whether such ill-treatment in Vietnamese prisons would have reached the minimum level of severity, or that there would be a genuine and substantial risk [A/3/26], as high standards of fairness require a decision-maker not to exclude any relevant matter from consideration in the assessment of any future risk claimed by an applicant.

70.  The law on the requirements for a decision-maker to make judgments about future risks in asylum cases is well settled in the United Kingdom by the decision of the House of Lords in R v Secretary of State for the Home Department, ex parte Sivakumaran [1988] AC 958, at pp 994F and 1000F, in which it was held that when deciding whether an applicant’s fear of persecution was well-founded, it was for the decision-maker to be satisfied that there was a reasonable degree of likelihood that the applicant would be persecuted for a Convention reason if returned to his own country.

71.  That decision, however, did not resolve the different, but related, question as to the standard of proof a decision-maker should apply when considering evidence of past or present facts before he or she goes on to make the necessary assessment of the future.  A number of cases have come before the High Court of Australia to try to answer that question, starting with Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, in which the High Court held that if an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, will be well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.  The court added that a real chance of persecution excluded a far-fetched possibility of persecution but that as little as a 10 per cent chance of persecution may constitute a well-founded fear of persecution and hence for a Convention reason may satisfy the relevant test.  

72.  In Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, at 293, per Kirby J, the High Court of Australia explained how this test should be applied:

“ First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court of law conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for such a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, so long as, in the end, he or she performs the function of speculation about the ‘real chance’ of persecution required by Chan.

    Secondly, the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material.  Evaluation of chance, as required by Chan cannot be reduced to scientific precision.  That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question: ‘What if I am wrong?’ [Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 at 441, per Einfeld J.]  Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems ‘likely’ or ‘entitled to greater weight’, the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a ‘real chance’ of persecution.”    

73.  The High Court of Australia returned to these issues in Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567, and found that while the tribunal was entitled to weigh the material before it and make findings before it engaged in any consideration of whether or not the applicant’s fear of persecution on a Convention ground was ‘well-founded’, their Lordships added at pp 579 – 580:

“ It is true that, in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred, or have or have not occurred for particular reasons in the past, is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a convention reason, it must take into account the chance that the applicant was so punished when determining that there is a well-founded fear of future persecution.”

74.  In Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719, the Australian Federal Court again examined this question and derived the following principles from those decided cases above ([60] – [67]):

(1) There may be circumstances in which a decision-maker must take into account the possibility that alleged past events occurred even though it finds that these events probably did not occur, as the ultimate question is whether the applicant has a real substantial basis for his fear of future risks, and the decision- maker must not foreclose reasonable speculation about the chances of the future hypothetical event occurring;

(2) The decision-maker cannot simply apply the civil standard of proof to all fact-finding, as it frequently has to make its assessment on the basis of fragmented, incomplete and confused information, and to assess the plausibility of accounts given by people who may be understandably bewildered, frightened, or desperate, and who often do not understand either the process or the language spoken by the decision-maker, and that even applicants with a genuine fear of persecution may not present as models of consistency or transparent veracity;

(3) In this context when the decision-maker is uncertain as to whether an alleged event occurred, or finds that although the probabilities are against it, the event may have occurred, it may be necessary to take into account the possibility that the event took place in deciding the ultimate question of whether the applicant has a real substantial basis for his fear;

(4) The “What if I am wrong” requirement is an aspect of the obligation to apply correctly the principles for determining whether an applicant has a well-founded fear of being persecuted for Convention reason;

(5) There is no reason in principle to support a general rule that a decision-maker must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that its findings were correct;

(6) If a fair reading of the decision-maker’s reasons as a whole shows that it “had no real doubt” that claimed events did not occur, then there is no warrant for holding that it should have considered the possibility that its findings were wrong.                

75.  This approach and their underlying principles were adopted by the UK Court of Appeal in Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11, [2000] 3 All ER 449, which held that the decision-maker must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur, as Brooke LJ stated:

“ … In the present public law context, where this country’s compliance with an international convention is in issue, the decision-maker is, in my judgment, not constrained by the rules of evidence that have been adopted in civil litigation, and is bound to take into account all material considerations when making its assessment about the future.

This approach does not entail the decision-maker (whether the Secretary of State or an adjudicator or the Immigration Appeal Tribunal itself) purporting to find ‘proved’ facts, whether past or present, about which it is not satisfied on the balance of probabilities. What it does mean, on the other hand, is that it must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur (or, indeed, that they are not occurring at present). Similarly, if an applicant contends that relevant matters did not happen, the decision-maker should not exclude the possibility that they did not happen (although believing that they probably did) unless it has no real doubt that they did in fact happen.

For the reasons much more fully explained in the Australian cases, when considering whether there is a serious possibility of persecution for a convention reason if an asylum seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur. Similarly, even if a decision-maker finds that there is no serious possibility of persecution for a convention reason in the part of the country to which the Secretary of State proposes to send an asylum-‌seeker, it must not exclude relevant matters from its consideration altogether when determining whether it would be unduly harsh to return the asylum seeker to that part, unless it considers that there is no serious possibility that those facts are as the asylum-‌seeker contends.

    Needless to say, … when assessing the future, the decision-maker is entitled to place greater weight on one piece of information rather than another.  It has to reach a well-rounded decision as to whether, in all the circumstances, there is a serious possibility of persecution for a convention reason, or whether it would indeed be unduly harsh to return the asylum-seeker to the allegedly ‘safe’ part of his/her country.  This balancing exercise may necessarily involve giving greater weight to some considerations than to others, depending variously on the degree of confidence the decision-maker may have about them, or the seriousness of their effect on the asylum-seeker’s welfare if they should, in the event, occur.”

([2000] 3 All ER 449, 469g – 470d)

76.  In the present case we are mainly concerned with the applicant’s claimed fear of harm under BOR 3 risk or CIDTP arising from being examined for penal liability upon his return to Vietnam and of the detention/prisons conditions if convicted under its regime, it is in my judgment that no matter how “little risk” the Board may have found that the applicant would be examined by the Vietnamese authorities for the murder committed in Hong Kong, it is my judgment as noted above that upon proper reading of the relevant articles of the Penal Code and in the particular circumstances of the applicant the risk of him being examined or prosecuted by the Vietnamese authority is not so far-fetched that it can be discarded for consideration, and that in any event the Board should have followed the same approach in those contexts as adopted in Karanakaran by taking into consideration all the relevant circumstances when considering whether there is nevertheless a reasonable or serious possibility of the applicant’s claimed fear of double jeopardy occurring upon his return to Vietnam, as well as whether it would be unduly harsh for him to do so given the facts that he has no family or friends in a country where he has been away for almost 30 years and may no longer speak its language and without any particular vocational skills for employment in that place, none of which the Board appears to have considered as a relevant risk or conducted any evaluation thereof.

77.  To demonstrate how disparate some of the matters which the decision-maker has to evaluate may appear, Brooke LJ referred to those cited in R v Secretary of State for the Home Department, ex parte Robinson [1998] QB 929, and in Sayandan (5 March 1998: HX/65429/96 (16312)), where the question of the proper approach to internal relocation was raised:

“ In Ex p Robinson [1997] 4 All ER 210 at 217, [1998] QB 929 at 940 the court referred to considerations which I would interpret as: (i) the certainty of having to cross battle lines; (ii) the certainty of having to hide out in an isolated region of their country like a cave in the mountains, a desert or a jungle; (iii) the strong likelihood that the weather in a safe area will be unattractive; (iv) the strong likelihood (at first, any rate) of the applicant having no friends or relatives there; (v) the probability (or, the serious possibility) of him/her not being able to find suitable work.

In Sayandan’s case 11 different considerations were suggested as worthy of the decision-maker’s attention. They were …: (1) the risk of the applicant’s being arrested and returned to his homeland in north-east Sri Lanka because of his lack of appropriate documents; (2) the risk of his being repeatedly arrested in round-ups; (3) the risk that he would be subjected to extortion; (4) the risk of unduly harsh treatment before obtaining access to judicial process; (5) the risk, if the applicant is detained, of his being subjected to dreadful prison conditions; (6) the risk of his not being able to find or retain accommodation; (7) the risk of his not being able to find any employment, due to blatant discrimination in the labour market; (8) the risk that his inability to speak Sinhalese would place him at a disadvantage in dealing with government officials; (9) the risk that he would be subjected to a regime where racial discrimination was part of everyday life; (10) the risk that he would have no real contacts or ties in Colombia; and (11) the risk of his previous treatment in Sri Lanka by both the LTTE and the security forces.”

([2000] 3 All ER 449, 470h – 471c)

78.  Brooke LJ approved the way the tribunal in Sayandan approached this bundle of risks and explained:

“ The way the tribunal in Sayandan’s case approached this rather disparate bundle of risks is in my judgment a good example of the way in which fact-finders should approach this issue. It reminded itself that it is found that there was a part of his country in which it would be unduly harsh to expect an applicant to settle, that part must be eliminated as a place to which he might be returned.”

([2000] 3 All ER 449, 471c–d)

79.  His Lordship then concluded that the approach to evaluate both the likelihood of a risk eventuating and the seriousness of the consequences if it were to eventuate should be adopted by decision-makers:

“ I express no view on the merits of that decision. That is, and must be, a matter for the judgment of the members of that experienced specialist tribunal, and unless they have committed some error of law this court will not interfere with their judgment. What is relevant in the present case is the methodology they adopted. Unless something is so trivial that even on a cumulative assessment it would be bound to carry no weight, or the decision-maker has no real doubt that it is entitled to discard some point from its consideration altogether, it would be wrong to eliminate that point completely. In my judgment, the tribunal’s technique in Sayandan’s case of evaluating both the likelihood of a risk eventuating and the seriousness of the consequences if it were to eventuate demonstrates a correct approach. It was also correct for it to assess the cumulative effect of the matters it was considering, particularly if there was a likelihood that they would all affect the applicant at the same time.”

([2000] 3 All ER 449, 471h – 472a)

80.  Sedley LJ sitting in the same court agreed and summarized his own view on the proper role of the decision-makers and the proper approach they should adopt in their assessment of an applicant’s claim as follows:

“ Like Brooke LJ, I find the Australian cases of the greatest assistance. I would put my own view, in summary, as follows. The question whether an applicant for asylum is within the protection of the convention is not a head-to-head litigation issue. Testing a claim ordinarily involves no choice between two conflicting accounts but an evaluation of the intrinsic and extrinsic credibility, and ultimately the significance, of the applicant’s case. It is conducted initially by a departmental officer and then, if challenged, by one or more tribunals which, though empowered by statute and bound to observe the principles of justice, are not courts of law. Their role is best regarded as an extension of the initial decision-making process: see Simon Brown LJ in R v Secretary of State for the Home Dept, ex p Ravichandran [1996] Imm AR 97 at 112. Such decision-makers, on classic principles of public law, are required to take everything material into account. Their sources of information will frequently go well beyond the testimony of the applicant and include in-country reports, expert testimony and — sometimes — specialised knowledge of their own (which must of course be disclosed). No probabilistic cut-off operates here: everything capable of having a bearing has to be given the weight, great or little, due to it. What the decision-makers ultimately make of the material is a matter for their own conscientious judgment, so long as the procedure by which they approach and entertain it is lawful and fair and provided their decision logically addresses the convention issues. Finally, and importantly, the convention issues from first to last are evaluative, not factual. The facts, so far as they can be established, are signposts on the road to a conclusion on the issues; they are not themselves conclusions. …” ([2000] 3 All ER 449, 479a–e)

81.  In the premises and for the reasons stated above, I agree with the applicant that high standards of fairness require the Board to also consider those risks which the applicant claimed to fear in the event of him being prosecuted by the authorities upon his return to Vietnam, of which he submits that there were clearly COI materials before the Board relevant to such risks, but which the Board had failed to properly consider, which is his second ground.

GROUND 2:  FAILURE TO PROPERLY CONSIDER RELEVANT COI

82.  In this ground the applicant’s argument is that the Board failed to take into account relevant COI materials including the arbitrary nature of the Vietnamese regime and arresting procedures, and the poor prison conditions which may per se amount to CIDTP, as high standards of fairness require the Board to look at all the material evidence available before it.

83.  In its assessment of the COI materials in the Bundle, the Board did note and acknowledge in its decision that the Vietnamese government permitted arbitrary arrest and detention for political activities and police mistreatment of suspects during arrest and detention, and that in January 2014 it had begun to implement laws in accordance with constitutional amendments to deal with such problems, but that at the time of its decision they had not yet been implemented:

“ 27. Judicial notice can be taken of the fact that the Socialist Republic of Vietnam is an authoritarian state ruled by a single party, the Communist Party of Vietnam (‘CPV’). The COI materials showed that in January 2014 the CPV government began implementing laws in accordance with constitutional amendments, including human rights-related articles; and in November 2014 the National Assembly passed a new penal code; a criminal procedure code; laws on custody and temporary detention; a civil code; and a civil procedure code. It was noted that the criminal procedure code and the custody law codified the presumption of innocence, placed the burden of proof in criminal proceedings on the state; a limited right to remain in silent in certain circumstances was recognized; the regulations on the right to counsel were made more liberal. However, it appears that the new laws have yet to be implemented.

28.  However, the COI materials also showed that the government permitted arbitrary arrest and detention for political activities; and the continued police mistreatment of suspects during arrest and detention; austere prison conditions; and that the judicial system was opaque and lacked independence.”    

84.  Mr Wong submits for the applicant that the Board nevertheless failed to address or to address sufficiently the aspects of arbitrary arrest and detention or prisons conditions as feared by the applicant after having arrived at the assumption that there would be little risk of him being examined for penal liability upon his return to Vietnam, an approach that he submits as unwarranted and in fact contradicted by the COI materials.

85.  An examination of the COI materials available before the Board shows at least the following would be relevant to the applicant’s claimed fear of being examined for his penal liability for leaving Vietnam without permission and for the murder committed in Hong Kong which should have been properly considered and/or addressed by the Board in its decision:

(1) that those fleeing the country for political or other non-financial reasons would be put in prison for years [B1/3/220];

(2) that there were two separate incidents in April and July 2015 that after the Australian navy had intercepted and returned two boats of passengers to Vietnam upon its assurances to the Australian government that it would not punish people for illegally leaving the country, but subsequently individuals from both boats had been arrested and detained for 24 days before subsequently charged and convicted under Article 275 for organizing such flee [B1/3/222];

(3) that the health of some of those being detained deteriorated badly but was denied plea for treatment at a hospital [B1/3/223];

(4) that conditions in prisons and detention facilities in Vietnam are notoriously bad, that the prisoners and detainees lack adequate medical care and proper treatment, and that from October 2011 to September 2014 there were 226 cases of death in detention facilities of which the main causes were illness and suicide [B1/3/86 – 87, 223, 233];

(5) that despite the constitutional amendments the Vietnamese government in 2016 was still prosecuting its citizens for leaving the country with prison terms between two and three years [B1/3/223];

(6) that arbitrary arrest and detention remained a serious problem, with the authorities subjecting many religious and political activists to varying degrees of arbitrary detention in their residences, in vehicles, at local police stations, at social protection centers or local government offices, as well as arresting and detaining human rights activists upon their return from overseas trips [B1/3/87, 234 – 240];

(7) that the authorities also subjected many individuals who were not activists, particularly those suspected of crimes, to varying degrees of arbitrary detentions and searching their home and belongings without search warrant, leading to some of them committing suicide in detention [B1/3/239];

(8) that pretrial detention pending investigations of different level of crimes can run from 4 months for less serious crimes to 24 months for the most serious ones, with reports of the police and prosecutors using lengthy periods of detention to punish or pressure defenders to confess to crimes [B1/3/240];

(9) that persons arrested or detained often were not entitled to challenge in court the legal basis or arbitrary nature of their detention or to obtain prompt release or compensation if detention is found to be unlawful [B1/3/240];

(10) that political influence, endemic corruption and inefficiency had strongly distorted the judicial system with trial outcomes largely predetermined due to political reasons [B1/3/241];

(11) that police routinely interrogated suspects without their attorneys present, with many reports that investigators used physical abuse, isolation, excessively lengthy interrogation sessions, and sleep deprivation to compel detainees to confess [B1/3/241]; and

(12) that a court in Long An sentenced a 15-year-old boy to 30 months in prison for “intentionally inflicting injury on state officials” after denying him of legal representation while the local authorities also refused to allow his family members to enter the courtroom [B1/3/241].

The Director’s arguments

86.  As pointed out by the applicant, none of the above had indeed been addressed at all or sufficiently by the Board in its decision, but Mr Yip for the Director argues that since the applicant never relied on the arbitrary nature of the Vietnamese regime or arresting procedure in his appeal before the Board as a reason why he should not be refouled, he fails to see how he can now argue that the Board failed to take this into consideration when it was never raised in the first place.

87.  With regard to prisons conditions, Mr Yip submits that it was not necessary for the Board to go into the details after it had found that the applicant was not subject to any real risk of prosecution, and having reached the conclusion that the applicant would not face a genuine and substantial risk of being prosecuted upon applying the Vietnamese Penal Code, it was not necessary for the Board to further look into the prison conditions, hence the argument that the Board failed to consider the relevant COI under this ground cannot be substantiated.

Discussions

88.  I do not agree with the Director.  It is clear from the above that the applicant did raise the issues of arbitrary arrest/detention and prison conditions in Vietnam in his Notice of Appeal to the Board ([13] – [14]), and that the same were further expanded in his counsel’s submissions with additional COI made before the Board for his appeal and at the hearing [B2/3/291 – 308].  Hence it is plainly wrong to say that the issues were never raised before the Board for its consideration.

89.  As already elaborated above regarding Ground 1 of the applicant, it is my judgment that the Board was wrong to exclude its consideration of these issues, no matter how little risk it may have found that the applicant may be examined for penal liability by the Vietnamese authorities or prosecuted for the same, unless it had no real doubt that they should be discarded for consideration altogether, which is for the reasons stated above clearly not the case here.

90.  Further, while in many of the cases cited above such as Sayandan and Karanakaran where the decision-maker was asked to decide on the reasonableness of internal relocation, which was not an issue raised by the applicant in his application, but as noted above [12] the Director did find it necessary to assess that issue and determined that it is not “unduly harsh for [the applicant] to live in any place in Vietnam such as a metropolitan region like Ho Chi Minh City” [B1/2/34 – 35], but which the Board apparently did not find it necessary to consider in its decision.     

91.  Given the fact that the applicant no longer has any root in a country which he had left almost 30 years ago at the age of 12, a society which he may no longer know anything about its people, culture, geography or even its language in written or spoken form or both having been incarcerated in prison and detention all these years in Hong Kong with no or limited access to the computer or internet, and with obviously very little earning capacity or even survival skills needed in today’s cosmopolitan society heavily focused on technology even in a developing country such as Vietnam that with or without further prosecution by the authorities upon his return to the country, questions must be asked, and should have been asked, by the Board as to how he may be able to cope or survive in a place which he has not seen for almost 30 years and with practically no root or connection, or of which part of Vietnam where it would be safe and appropriate for him to live, or what sort of jobs would be available for him to make a living, or what help from the government or organizations may be available to enable him to re-establish himself in Vietnam, all of which are the same kind of disparate considerations taken by the tribunals in Robinson and Sayandan, and approved in Karanakaran as the proper approach to be adopted by a decision-maker in the evaluation of the risks which an applicant may be exposed to if returned to his or her home country, and which is clearly in the unique circumstances of the applicant’s case more critical and more substantial than in the average asylum case in this particular aspect, but which I agree with the applicant that the Board had failed to do, or failed to enlist the assistance of an expert in such assessments, and that as such its decision may be held to be Wednesbury unreasonable, which is the applicant’s third ground.

GROUND 3:  THE BOARD’S DECISION WAS WEDNESBURY UNREASONABLE

92.  The applicant submits that the Board’s decision is on the materials before it Wednesbury unreasonable, including its reason for rejecting his risk of harm from familial association with the previous regime completely missed the point and took too narrow a view with no understanding that the harm which he fears would come to him is not simply dependent on his father’s bad relationship with the Vietnamese government, and despite accepted that extrajudicial and arbitrary killings and torture do occur in Vietnam and did not reject the details of his fear “fleshed out” during the hearing, it nevertheless refused to accept that he would be personally at the risk which returned refugees are exposed to in Vietnam, and for its flawed reasoning that since Article 6 stipulates that Vietnamese citizens who commit offences whilst outside of Vietnam may be examined for penal liability, a fortiori there should be no real risk that he may even be examined at all, which is flawed as a matter of logic, as the latter simply does not follow a fortiori from the former.

The Director’s arguments

93.  The Director argues that none of these points advanced by the applicant show that the Board’s decision was Wednesbury unreasonable, as the Board had expressly found that the applicant’s case about his father was mere assertions without supporting evidence, and that so long as the Board had found that the applicant would not be facing a genuine and substantial risk of being subjected to ill-treatment, the factual finding of the general situation in Vietnam per se would not advance the applicant’s case.

Discussions

94.  For the reasons already given in my considerations of the applicant’s first two grounds above, of which I do not propose to repeat here, I agree with the applicant that the Board’s decision was Wednesbury unreasonable in its finding of little risk that the applicant may be examined or prosecuted for penal liability upon his return to Vietnam in his circumstances and upon proper analysis of the relevant Penal Code, and in its failure to assess the risks which he may face in the event of him being examined or prosecuted and thus being held in detention or prison, as well as in its failure to adopt an “individualised, holistic assessment” as to whether it would be unduly harsh in the particular circumstances of the applicant for him to return to a country which he had left almost 30 years ago as a boy and with no longer any root or connection, or with any particular earning or coping skills or capacity as a result of his lengthy incarceration in Hong Kong, as held by the House of Lords in AH (Sudan) v Secretary of State for the Home Department [2008] 1 AC 678, and as Baroness Hale of Richmond commented on the test of reasonableness in paragraphs 22, 27 – 28:

“ 22. … although the test of reasonableness is a stringent one — whether it would be ‘unduly harsh’ to expect the claimant to return — it is not to be equated with a real risk that the claimant would be subjected to inhuman or degrading treatment or punishment so serious as to meet the high threshold set by article 3 of the European Convention on Human Rights. As Lord Bingham points out, this is not what was meant by the references to article 3 in Januzi [2006] 2 AC 426, including what was said by Lord Hope of Craighead, when he referred to ‘the most basic of human rights that are universally recognised’ at para 54. Obviously, if there were a real risk of such ill-‌treatment, return would be precluded by article 3 itself as well as being unreasonable in Refugee Convention terms. But internal relocation is a different question.

…

27. That concern is allied to another. We know that the standard of comparison is not the lives which the returning claimants are living here: that is what Januzi was all about. We know that the lives they led before the persecution are a relevant factor but not, as the Court of Appeal thought, the starting point. We know that the lives they will face on return have to be considered in the context of ‘standards prevailing generally in the country of nationality’: Lord Bingham in Januzi, para 20. If people can return to live a life which is normal in that context, and free from the well-founded fear of persecution, they cannot take advantage of past persecution to achieve a better life in the country to which they have fled: see Lord Bingham in para 5 of his opinion. But this does not mean that the holistic consideration of all the relevant factors, looked at cumulatively, can be replaced by a consideration of whether their circumstances will be worse than the circumstances of anyone else in that country.

28.  Yet the tribunal concluded that because the conditions faced by returning Darfuris, however appalling, would be no worse than those faced by other Sudanese IDPs it would not be ‘unduly harsh’ to expect them to return.  The standard of comparison was, not with their lives in Darfur before their persecution, not with the general run of ordinary lives in Sudan, not even with the lives of poor people in Sudan, but with the lives of the poorest of the poor, internally displaced victims of the civil war in the south, living in camps or squatter slums, and ‘subject from time to time to relocations, sometimes involving force and human rights violations’: para 244.  They too had been subsistence farmers, ill-equipped to survive in the city slums (para 239); they too had suffered the psychological horrors of civil war (para 238), if not of government-backed genocide; the Darfuris would be no worse off, unless particular individuals attracted the adverse interest of the authorities: para 242.  With respect, this is not the individualised, holistic assessment which the question requires.”

95.  Plainly the Board did not undertake any such assessment in the applicant’s case, let alone an individualised holistic one.  For the reasons elaborated above, I agree with the applicant that the Board’s decision was in the circumstances Wednesbury unreasonable.

CONCLUSION

96.  In conclusion and for all the reasons given, I am satisfied that the applicant has made out his application for judicial review on all three grounds, and I accordingly grant a certiorari to quash the assessment of the adjudicator and the decision of the Board, and direct that the applicant’s appeal be heard before another adjudicator.

97.  On an order nisi basis I make no order as to costs and that the applicant’s own costs to be taxed on Legal Aid Regulations.

98.  Lastly it remains my wish to express my gratitude to counsel for the applicant and the Director for their most valuable assistance rendered to this Court throughout the hearing.