HOANG PHUONG DUNG v. THE REFUGEE STATUS REVIEW BOARD

1998 HCAL No. 30

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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J U D G M E N T

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Introduction

1. The Applicant is an asylum-seeker from Vietnam. She arrived in Hong Kong in January 1997. A few weeks later, the Director of Immigration refused her permission to remain in Hong Kong as a refugee. That denial of refugee status was confirmed in April 1997 when her case was reviewed by the Refugee Status Review Board ("the Board").

2. The Applicant was due to be returned to Vietnam on 26th May 1998. Her solicitors discovered that only a few days before then. An application for leave to apply for judicial review of the Board's decision refusing to accord her refugee status was quickly filed on 25th May. On the same day, an urgent application was made to Stone J. to prevent her immediate repatriation to Vietnam. There was insufficient time for Stone J. to reach a concluded view as to whether to grant leave to apply for judicial review. Accordingly, to ensure that the Applicant's challenge to the rejection of her claim for refugee status would not be rendered a dead letter, he restrained the Director of Immigration from returning her to Vietnam pending the determination of her application for leave to apply for judicial review. In taking that course, he was putting what was said in Phung Hoan v. The Director of Immigration (HCMP 288/97) into effect. As for the application for leave to apply for judicial review, Stone J. directed that the application be heard at an inter partes hearing. That is the application before me today.

The Applicant's delay

3. This application is acknowledged to be well out of time. Accordingly, the Applicant seeks an extension of time in which to apply for leave to apply for judicial review. I propose to grant her an extension of time up to 25th May 1998 when her application was filed. She was still waiting to hear whether she would be granted refugee status under the UNHCR's mandate, and that was said in Tran Van Tien v. The Director of Immigration (No. 2) (1996) 7 HKPLR 186 at p.193E-H to be a not unreasonable reason for not taking steps to challenge the Board's decision earlier. In any event, for the reasons given in Moc A Pao v. The Director of Immigration (HCMP 4280/96), asylum-seekers from Vietnam should not be prevented from challenging decisions refusing to accord them refugee status simply because of delay in mounting such challenges.

The merits of the application

4. I have decided to grant the Applicant leave to apply for judicial review. In view of the fact that the Director of Immigration's practice is in many cases to agree to the re-screening of an asylum-seeker from Vietnam if leave to apply for judicial review of the decision refusing to accord him refugee status is granted, I propose to give my reasons in brief by way of guidance to the Director of Immigration.

5. Reg. 7 of the Immigration (Refugee Status Review Board) (Procedure) Regulations contemplates an asylum-seeker from Vietnam having access to a number of documents to enable him to consider what representations to make to the Board on the review by the Board of his claim to refugee status. Those documents include the record of his interview by an immigration officer. For reasons which it is not necessary to go into at present, the Applicant was not provided with a copy of the record of her interview. That record was particularly important in this case because, in its Reasons, the Board emphasised the considerable differences between

(a) what the record of her interview recorded her as having told the immigration officer on 22nd January 1997, and

(b) her letter to the Board of 14th March 1997 setting out the basis of her claim to refugee status.

Those differences led the Board to conclude that the contents of her letter were untrue. Accordingly, the facts on which the Board based its conclusion that the Applicant should be denied refugee status were the facts said to have been elicited from her in interview.

6. Had she had the opportunity of considering the record of her interview by the immigration officer before she was interviewed by the Board on 11th April 1997, she would have been better prepared to deal with the questions which, not surprisingly, the Board asked her about the differences between that record and her letter. Indeed, she claims that the differences are attributable to the fact that much of what she told the immigration officer was either recorded incorrectly in his note of the interview or not recorded at all. Accordingly, had she had an opportunity to consider his record of the interview before she wrote to the Board on 14th March 1997, she would have been able to state in that letter where she contended the record was inaccurate or incomplete.

7. I recognise, of course, that if the record of the interview had been read back to her by the immigration officer, she would have known what the immigration officer had recorded. But her case is that the record was only read back to her in blocks, and she disputes that the whole of it was read back to her in the manner in which it now appears in the record. I recognise also that it is claimed that the "contents" of the record of the interview were "explained" to her by the lawyer instructed by the Duty Lawyer Service to give her advice, but I simply do not know what explaining the contents of a record of an interview actually involves.

8. For these reasons, it may be that the Board would have taken a different view of her credibility had the Applicant been provided with a copy of the record of her interview before 14th March (when she wrote to the Board) or at the very latest before 11th April (when she was interviewed by the Board). It is arguable, therefore, that

(a) the failure to provide her with a copy of the record of her interview constituted procedural unfairness,

(b) that procedural unfairness put her at a disadvantage when the Board came to consider her case,

(c) the Board would have been less sceptical about the factual assertions in her letter of 14th March had she not been at that disadvantage and,

(d) either the Board would have considered her claim to refugee status on the basis of the facts set out in her letter, or the Board would have asked the immigration officer who interviewed her to attend the Board so that the Board could come to an informed view as to whether the record of the interview was inaccurate or incomplete.

It may be that even if the Board had considered her claim to refugee status on the basis of the facts set out in her letter of 14th March, the Board would still have concluded that her claim to refugee status had not been made out. But the fact remains that, in the light of the view which the Board took of her credibility, that was a matter which the Board did not address.

9. Mr. William Marshall S.C. for the Board drew my attention to Al-Mehdawi v. The Secretary of State for the Home Department [1990] 1 AC 876, in which the House of Lords held that a litigant, who had been deprived of the opportunity of having his case heard because of the default of his own advisors to whom he had entrusted the conduct of his case, had no ground of complaint in law that he had been the victim of procedural impropriety or that natural justice had been denied to him. The House of Lords went on to hold that that principle applied equally to a case where the issue was one of public law and where the decision taken was of an administrative character as it did where the dispute raised issues of private law between citizens. However, in the present case, the Duty Lawyer Service had ceased to act for the Applicant by the time she wrote her letter to the Board on 14th March, and it may be that that is a valid distinction between the Al-Mehdawi case and the present case. Moreover, in commenting on the Al-Mehdawi case, it was said in De Smith, Woolf and Jowell, "Judicial Review of Administrative Action", 5th ed., para.10-040:

"It may thus now confidently be stated that the courts will not intervene to correct an alleged procedural defect which arose from the fault of the applicant or his representatives, unless, perhaps, the tribunal is also at fault." (Emphasis added)

In this case, the point is made on the Applicant's behalf that, when she was interviewed by the Board, the Board did not check with her whether she had been supplied with a copy of the record of her interview. I am far from saying that the Al-Mehdawi principle has no application to the present case. All I am saying is that the effect of the Al-Mehdawi principle on the present case is one which, I think, calls for mature and careful consideration.

Conclusion

10. There are a number of other criticisms made on the Applicant's behalf relating to the way in which the Board approached her case. I do not propose to refer to them in this judgment. For the reasons I have endeavoured to give, the fact that the Applicant was not provided with a copy of the record of her interview by the immigration officer is sufficient, in the particular circumstances of this case, to justify granting the Applicant leave to apply for judicial review.

11. Finally, I should add that the test which I have applied is the one laid down by Godfrey J. (as he then was) in the Court of Appeal in R. v. The Director of Immigration ex p. Ho Ming Sai [1993] 3 HKPLR 157 at p.170:

"Does the material before me disclose what might on further consideration turn out to be an arguable case?"