IN RE LE TU PHUONG AND ANOTHER

1992, M.P. No.2368

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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R U L I N G

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1. Counsel's submissions in support of and in reply to the applicants' application to exclude the Country Conditions material have been exhaustive. It is no wonder that leading counsel for the respondents does not seek a further opportunity to comment on the last series of authorities brought to my notice by counsel for the applicants. I am reminded by Mr Marshall that he, in fact, awaits the court's indication as to whether a further reply would be invited, particularly in the extensive endeavours made in this case, but I would prefer to leave the decision entirely in the hands of counsel.

2. Perhaps it is more convenient to begin by stating the respondents' grounds on which the Country Conditions material are said to be pertinent and sought to be retained. Leading counsel for the respondents submits that the Court must share the same background Country Condition information as that before the Immigration Officer, and finally before the Board. Secondly, it is contended on behalf the respondents that they themselves would need to crave in aid these Country Conditions material despite the fact that they are not being sought to be relied upon by the applicants.

3. On the first ground for the retention of these Country Conditions material, it is argued that without the relevant background information, the applications for asylum status cannot even be begun to be fully appreciated, let alone reviewed on the existing grounds.

4. In the case of Nguyen Ho and Others v. Director of Immigration and Another, ex parte Do Giau and Others [1991] HKLR 576 and seriatim set out in Dao Giau [1992] HKLR 287 at 327, at page 331, line 25 of the Annexure 2 to the judgment of Dao Giau, the Vice-President observed: "I am satisfied that unreasonableness is a factor by itself, what might be termed the second limb in Wednesbury, can only be judged with regard to what was known to the inferial tribunal at the time." That passage does not seem to lend support to Mr Marshall's proposition that what had been considered by the decision-maker as case background must be rehearsed before the reviewing court for information. At page 340 from line 26 - line 34, with regard to these material Mortimer J. summed up in his earlier ruling as follows :-

"Further, general evidence of this nature, in an attempt to show that there was Wednesbury unreasonableness is not admissible, and no authority for this startling proposition has been advanced. It would be quite wrong in principle in proceedings for judicial review to allow such evidence. Similarly, unless the matters to which the evidence is directed, can be demonstrated to the court, general evidence of 'country conditions' in order that this court should be generally informed as background to its enquiry cannot be admitted. This also would be wrong in principle having regard to the limited nature of the court's powers in judicial review proceedings."

Mr Marshall directs the court's attention to the central issue debated before Mortimer J. It was with reference to an attempt to adduce further or fresh evidence. This helpful summary, so Mr Marshall submits, must be read in its proper context. This Court's unfamiliarity with Vietnamese Country Conditions would not appear to be a good cause for admitting further evidence, general, fresh or otherwise. The reviewing court is solely concerned with the decision-making process. It is uninvolved with any factual finding exercise. Little more, in my view, need be known of the background information. Cases where the court's knowledge of the factual matrix is necessary for review must be rare. If it be right that this Court's short-coming in Country Conditions should be relieved by the factual matrix placed before the Immigration Officer or the Board, there would be no justification for excluding general or fresh evidence even later in the day when the matter reaches the review stage so as to qualify the reviewing court to entertain the applications with confidence. The crux of the matter to be decided is, therefore, whether this Court needs to be fully briefed on all the background facts. As I have endeavoured to explain, judicial review concerns decision-making process, and not facts. It is not for the reviewing court to interfere with factual findings. The court is not to be troubled by whether or not the decision questioned is right or wrong or right or wrong against any given set of circumstances unless the same may be brought within the recognised judicial review principles. It is not the law that the reviewing court must, in every case, possess full knowledge of the background. In my view, generally the courts in judicial review need not become so educated as Mr Marshall has argued.

5. Next I turn to the remaining contended justification for retaining the Country Conditions material in this application. Mr Darwyne, counsel for the applicants, has reminded the Court constantly that the applicants would not be relying on the Country Conditions. A rider is however added by counsel that if these Country Conditions material were ultimately admitted, the applicants would reserve their right to reconsider their stance and may be driven to apply for further grounds to be added.

6. Counsel for the applicants is critical of the attempt to retain these Country Conditions material, said to have been motivated by a maneuver to unnecessarily widen the factual matrix so as to enlarge, supplement or modify the reasons already given by the Immigration Officer and the Board. Mr Darwyne further submits that in fact these Country Conditions material are not even capable of being taken as relevant to any of the issues before this reviewing court.

7. It is often said that most of the material documents are in the hands of the decision-maker and it would be incumbent upon the decision-maker to place all the cards on the table, face upwards. The challenge in the instant application mounted on behalf of the applicants seems to be in the reverse. Certain Country Conditions in Vietnam, vetted and approved as relevant, are as a rule placed before the Immigration Officer. He is duty-bound to take careful note of the same, and in this case, the Immigration Officer concerned stated that he had digested the material fully. Naturally, not all the Country Conditions so vetted and approved as potentially relevant is put to use by an Immigration Officer. Only the Country Conditions material to a given case are resorted to, as they were in this case. What falls to be decided, therefore, is whether the used Country Conditions material would be required by the respondents to meet the complaints or contest the issues in this review.

8. I have been well assisted by Mr Law, counsel for the respondents, on Country Conditions material. They can be divided into three categories. Category 1 is not part of the vetted and approved Country Conditions material used by the Immigration Officer as it was regarded as unconnected with and irrelevant to the matter then under consideration. Category 2 covers material which the respondents had regarded as germane to some of the issues in these applications. They include matters with reference to Ho Kau, Ethnic Chinese and Relgion. Category 3 comprises Country Conditions material for assessing the living conditions and general living standards in Vietnam so as to enable the Immigration Officer to understand and evaluate the information supplied by or on behalf of the applicants.

9. As for Category 2 Country Conditions material, Mr Marshall seeks to support their admissibility on six main grounds. But as I see them, grounds 1 and 2 are similar, grounds 3 and 4 are closely related and so are grounds 5 and 6. These material are necessary, so Mr Marshall submits, for evaluating the versions volunteered by the applicants. Secondly, such material would provide the Immigration Officer with an overall scenario for deciding on the question of persecution. These two grounds relate to irrationality. The importance of Ho Kau is said, under ground 3, to have gradually diminished. Ho Kau has now constantly been restored as can be gleaned from the Ho Kau Country Conditions material. Adverse repercussions have become less acute. Ground 4 deals with ethnicity and religion, the Country Conditions material for which demonstrate, so Mr Marshall argues, an improvement of the situation as from the end of 1980. In substance, both ground 3 and ground 4 highlight the alleged improved conditions. As a ground, ground 5, it is said that although loss of Ho Kau was at one time prevalent, no mention has ever been made of such a loss in the Country Conditions for the reasons advanced by the husband applicant. Hence, it would be permissible for the Immigration Officer, and consequently the Board, to infer that the husband's Ho Kau was not in fact so allegedly confiscated. Lastly, in ground 6, Mr Marshall also relies on the lack of reference in these Country Conditions material to, in particular, nationality, ethnicity, race or racial discrimination as a cause for the deprivation of Ho Kau.

10. In addition to the core challenge of Mr Darwyne, counsel takes issue with the relevance or applicability, in terms of territory or time, of these Country Conditions. Mr Darwyne is at pains to impress upon me that the personal experiences of the applicants endured within their own time frame are matters of more paramount importance.

11. For the respondents, leading counsel focuses on paragraph 16 of the grounds on which relief is sought. Paragraph 16 reads:

"The decisions of the Immigration Officer and the Board were so unreasonable that no reasonable person could have come to them: Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 223."

No particularity was provided nor was it ever asked for. Suffice it for me to say that ground 16 is a complaint of irrationality in the broadest possible sense. It would be more appropriate and certainly less burdensome if this very application were to be made, after the substance under paragraph 16 has been fully canvassed, in the course of the respondents' reply to identifiable criticisms. On the broad complaint voiced in paragraph 16, it would almost be impossible for this Court to even try to exclude evidence claimed by the respondents to be relevant to the issue of irrationality against the given scenario in this case. This Court is not concerned with whether the decisions questioned are right or wrong Nor, unless it could be properly brought within the judicial review principles, can this Court be invited to determine whether the right kind or wrong kind of material had been relied upon. Put differently, this court could not review errors, if any, made by the Immigration Officer or the Board in the selection of material or advice they had respectively acted on. It is outside the purview of judicial review to try to ascertain what are the background material made available or ought to have been included for consideration. Therefore, within the narrow ambit of the judicial review principles, it cannot be said to be improper of the respondents not to have volunteered a full disclosure of every conceivable relevant background material.

12. But it is not to be overlooked that the principles governing discovery in judicial review applications are quite dissimilar from the rules of discovery applicable to civil litigation. This is not an application for discovery. These Country Conditions material have been properly brought in. In the same train of thought, I cannot see how the evidential exclusionary rules can be generally applied to judicial review applications, particularly, when it is trite law that the reviewing court cannot interfere with findings of fact.

13. To the very broad issue of irrationality, the respondents claim that the Country Conditions material outlined by Mr Law are relevant. I need not emphasize too strongly that Country Conditions material in Category 3 for living conditions and general living standard are no more than basic data. In order to illustrate, albeit these Country Conditions material are not sought to be relied upon by the applicants, that the decisions of the Immigration Officer and the Board are not irrational decisions made against the known scenario, the Country Conditions material so systematically analysed by Mr Law cannot be said to be irrelevant.

14. Analysing the situation as best as I could in a very complex application, the disagreement between the applicants and the respondents would seem to resolve into three main questions : (1) Is not the only issue for determination now a question of relevance? (2) Is it not necessary, in order to decide on the question of relevance, to understand the background information so that the decisions can be understood and judged in their proper context? (3) Are not the Country Conditions material therefore relevant for the purpose of question (2)?

15. The respondents have been procedurally in time to introduce these Country Conditions material by affidavit. The remaining issue must be one of relevance for exclusion. The evidential exclusionary rules can have no general application to the evidence for judicial review. Decision-makers constantly rely on hearsay, double hearsay, rumours and other evidentially inadmissible material or documents. Relevance must therefore be considered in the field of judicial review. The matter has been made more difficult by the broadest possible unspecified complaint of irrationality raised in paragraph 16. The answer to question (1) must be in the affirmative.

16. Question (2) virtually answers itself. It would be quite impossible to exclude background information placed before and considered by the Immigration Officer and the Board to judge the rationality or otherwise of the decisions challenged. The decisions must be examined in their proper perspective so as to judge rationality in Wednesbury reasonableness sense or otherwise. The answer to the second question must therefore be also "yes". Question (3) follows as a matter of course and is likewise answered positively.

17. The respondents have intimated that they would be prepared to disclose and submit for perusal Country Conditions material relevant to any of the issues here, particularly in paragraph 16. The application for the allegedly relevant Country Conditions material to be excluded, fails.

18. I am indebted indeed to the very careful submissions from Mr Marshall, Mr Law and particularly from Mr Darwyne who has managed to, in the shortest of time, produce very helpful written submissions.