VO THI DO and 1240 Others v. THE DIRECTOR OF IMMIGRATION

IN THE COURT OF APPEAL

1996, No. 210
(Civil)

------------------------------------------------

----------------------

J U D G M E N T

----------------------

Litton, V.-P. (giving the judgment of the Court):

Introduction

1. There are 1241 appellants before us. They are all former residents of Vietnam held in detention in various refugee centres by the authority of the Director of Immigration under s13D(1) of the Immigration Ordinance Cap 115 pending repatriation to Vietnam.

2. They all arrived in Hong Kong between 16 June 1988 and 2 June 1989 and have undergone the full screening process: that is to say, examination under s4(1)(a) of the Immigration Ordinance, review under s13F, a further administrative review by representatives of the United Nations High Commission for Refugees ("UNHCR") and have been determined not to be refugees, as defined by the 1951 Convention and 1967 Protocol.

3. On 14 October 1996 solicitors for the appellants lodged an application in the High Court seeking leave to institute proceedings for judicial review. The reliefs sought are as follows:

"1. Certiorari to quash the decisions of the Director of Immigration to detain the Applicants under s13D(1) of the Immigration Ordinance pending a decision as to whether to permit them to remain in Hong Kong; and

2. Certiorari to quash the decisions of the Director of Immigration refusing the Applicants permission to remain in Hong Kong as refugees; and

3. Mandamus requiring the Director of Immigration to grant the Applicants permission to remain in Hong Kong as refugees under s13A(1) of the Immigration Ordinance; and

4. Damages, under RSC Order 53 rule 7, for any period or periods in respect of which it is found that the Applicants have been unlawfully detained."

4. Two grounds were put forward in support of the application:

(1) The Director of Immigration had no legislative authority to refuse permission to the appellants to remain in Hong Kong as refugees: Under the Immigration Ordinance the Director was "statutorily bound" to acknowledge the appellants' status as refugees when they landed in Hong Kong.

(2) Each of the appellants had a "legitimate expectation" that, upon arrival in Hong Kong, they would be given permission to remain in Hong Kong as refugees, pending resettlement elsewhere; the Director's denial of their status as refugees upon arrival was wrongful; their "legitimate expectations" should now be satisfied by an order of mandamus in terms of para 3 of the reliefs sought in the application.

5. The application for leave was heard by Keith, J. on Saturday 19 October 1996. A reasoned judgment was given on the same day. The judge held that neither of the two grounds was arguable and the applications were dismissed. Hence the appeal to this court.

Background facts

6. The historical background to the Vietnamese "boat people" issue has been told in a number of leading judgments, most recently in Tan Te Lam v. Superintendent of Tai A Chau Detention Centre [1996] 2 WLR 863 and requires repetition only to this extent: Prior to 16 June 1988, the policy of the Government has been to permit Vietnamese asylum seekers to remain as refugees pending their resettlement elsewhere, without examination of their claim to refugee status. They were however (since July 1982) held in "closed camps". This was the "first asylum" policy, devised in consultation with the UNHCR, and was based upon the assumption that the pace of resettlement elsewhere would match the pace of arrival. But, by 1988, the rest of the world was not accepting the Vietnamese migrants for resettlement at anything like the rate of arrival in Hong Kong. This imposed a very heavy burden on the community. In consultation with the UNHCR a new policy was adopted which involved two stages. First, on arrival the migrants would be "screened" to see if they qualified for refugee status. Second, if they did not so qualify, they would be repatriated to Vietnam. In the meanwhile, the migrants were to be held in detention centres as illegal immigrants pending the determination of refugee status and, secondly, if not granted refugee status, held in detention pending removal.

7. This change of policy was announced by the Chief Secretary in the Legislative Council on 15 June 1988, to take effect at midnight. To give effect to this change of policy, all Vietnamese migrants arriving after midnight on 15 June 1988 had read to them this warning:

"There is a new policy in Hong Kong. Former residents of Vietnam seeking to enter Hong Kong are now treated as illegal immigrants on arrival. You are free to leave Hong Kong. If you choose to continue your journey you will be given food and water and, if necessary, your boat will be repaired. If you do not leave Hong Kong, you will be detained as an illegal immigrant pending repatriation to Vietnam".

8. A few months later the warning notice was changed to the following:

"Former residents of Vietnam seeking to enter Hong Kong are now subject to a process to decide whether or not they are refugees as defined in the 1951 United Nations Convention Relating to the Status of Refugees. Those found not to be refugees will be treated as illegal immigrants. As an illegal immigrant you will be detained pending repatriation to Vietnam. However, you are free to leave Hong Kong if you choose to continue your journey, you will be given food, water, and if necessary your boat will be repaired."

9. There were other changes to the form of the warning notice which do not affect the issues on this appeal.

10. On 2 June 1989 amendments were made to Part IIIA of the Immigration Ordinance providing in particular for the right of a migrant determined not to be a refugee to apply for a review of his status by the Refugee Status Review Board under the new s13F.

11. The 1241 appellants before us all arrived in Hong Kong between 16 June 1988 and 2 June 1989: That is to say, between the date when the new policy came into effect and the date when the legislative amendments were made providing for the process of review by the statutory board. It is the appellants' case that, at least arguably, the policy change - denying them refugee status on arrival - was unlawful.

Threshold for the application

12. Counsel for the appellants has rightly reminded us that, at the leave stage, the burden upon them was not to satisfy the judge that their contentions were right: all they needed to do was to show that on the material before the judge there was something warranting further consideration. For this purpose, counsel relies upon dicta of this court in Ho Ming Sai & others v. Director of Immigration [1994] 1 HKLR 21.

13. Accepting this formulation of the issue to be correct, the question is whether the judge has erred in refusing leave.

Legislative Authority

14. As mentioned earlier, the first ground of application depends upon the legislative scheme under which the Director of Immigration exercised his authority, with reference to the appellants who arrived in Hong Kong between 16 June 1988 and 2 June 1989. The judge has examined closely the two key provisions in Part IIIA of the Immigration Ordinance, s13A(1) and s13D(1) which then provided:

"13A. (1) An immigration officer may permit any person

(a) who was previously resident in Vietnam and who has been examined under section 4(1)(a); or

(b) who was born after 31 December 1982 and whose father or mother was previously resident in Vietnam and who has been examined under section 4(1)(c),

to remain in Hong Kong as a refugee pending his resettlement elsewhere, and, in the case of any such person who arrives in Hong Kong on or after 2 July 1982 or who was born after 31 December 1982 may order him to be detained in a refugee centre specified by the immigration officer."

"13D. (1) As from 2 July 1982 any resident or former resident of Vietnam who arrives in Hong Kong not holding a travel document which bears an unexpired visa issued by or on behalf of the Director may, if he has not been granted an exemption under section 61(2), be detained under the authority of the Director in such place as the Director may specify pending a decision to grant or refuse him permission to remain in Hong Kong as a refugee or, after a decision to refuse him permission to remain in Hong Kong, pending his removal from Hong Kong."

15. The judge found that, unarguably, s13D(1) authorized the Director to implement the new policy vis-à-vis the appellants: that is, to say, to hold the appellants in detention pending their examination by an immigration officer under s4(1)(a) of the Ordinance and, if not given permission to remain in Hong Kong as refugees, pending repatriation.

16. As we understand the appellants' argument under this heading, it boils down to two propositions:

(i) Since, prior to 16 June 1988, every one detained by authority of the Director under s13A(1) was so detained as a refugee pending resettlement elsewhere, detention after 15 June 1988 must be for the same purpose; Section 13D(1) was never intended to be used for detaining a Vietnamese migrant pending the Director's decision to grant or refuse him permission to remain in Hong Kong as a refugee.

17. Like the judge, we find this argument wholly untenable. Section 13D(1), on its plain wording, authorises detention for this purpose. The fact that it was seldom used prior to 16 June 1988 does not, in any way, affect its scope. Moreover, it is difficult to see why counsel has limited his argument to the 1241 migrants who arrived before 2 June 1989: the legislative amendments effected in 1989 made no significant changes to s13A(1) and s13D(1), except this: subsection (3) was added to s13D to give a right to apply to the Refugee Status Review Board for review. If denial of refugee status ab initio was unlawful, it is difficult to see how the introduction of s13D(3) could have made it lawful. The argument, if it be valid, would avail migrants arriving after 2 June 1989, affecting not only the 1241 persons in this case but thousands of others as well.

(ii) It is also argued by counsel for the appellants that the words "may permit" in s13A(1) should, in the context of the legislative scheme as it existed prior to the 1989 amendments, be construed as meaning "must permit". Accordingly, it is said that the Director had a statutory duty to permit the appellants to remain in Hong Kong as refugees pending resettlement elsewhere, without subjecting them to any screening process.

18. This proposition is startling. As the judge said, it is well established that, except for Hong Kong permanent residents as defined in Schedule I to the Immigration Ordinance who have a right of abode in Hong Kong, no person arriving in Hong Kong has an automatic right to remain here. The suggestion that Vietnamese migrants, arriving here without any travel documents, should have a right to remain, at least until they have been offered resettlement elsewhere, is in our judgment untenable.

Legitimate expectation

19. Reading the affidavits which have been lodged, the personal hardships of some of the appellants are undeniable and few people would not be moved with sympathy for their plights. Prior to 16 June 1988, the "first asylum" policy was in place and Vietnamese migrants arriving without travel documents were permitted to remain as refugees pending resettlement elsewhere. Did this give rise to a "legitimate expectation" on the part of those who were, say, on the high seas when the change took place, that they would be dealt with under the old policy upon arrival? This depends, obviously, upon what representations were made to them by the Director of Immigration. It has not been contended on behalf of the appellants that the Director of Immigration had represented to anyone that the policy would not change. In our judgment, the judge was entirely correct when he said:

"... there was nothing in what [the appellants] had heard which could have given them reason to believe the policy of the Hong Kong Government would not change or that any new policy would not be applied to them. Accordingly, I do not think it arguable on the evidence which has been filed that the [appellants] had a legitimate expectation that they would be permitted to remain in Hong Kong as refugees pending their resettlement elsewhere. The only legitimate expectation they had was that, if the policy had not changed by the time of their arrival in Hong Kong, they would be permitted to remain in Hong Kong as refugees pending their resettlement elsewhere."

20. As it seems to us, this is a complete answer to any point which might be argued on the appellants' behalf based upon legitimate expectations.

21. There is in fact an additional point in relation to at least some of the appellants: for instance, Mr Vo Thi Do, appellant No. 1160, who did not arrive in Hong Kong until 20 May 1989, having left Vietnam the month before. By that time, as he admitted, he was aware of the "screening" policy. It must necessarily follow that he had no expectations of any kind that he would be granted automatic refugee status upon arrival. We have not been told how many other appellants fall into the same category.

Conclusion

22. Before concluding this judgment, we would make this observation. The reliefs sought by the appellants, as formulated in the application, are far too vague. Where "decisions" of an authority such as the Director of Immigration are to be judicially reviewed, the dates when the decisions were made should be stated. This would then pinpoint the precise act sought to be impeached. Here, as it emerged in the course of argument, there were two possible scenarios: (i) The "decision" impliedly made when, immediately upon landing in Hong Kong, each of the appellants was detained pending "screening" - without permission to land as refugees having been given. (ii) The decision of the Director communicated to each appellant when a notice was served on him under s13D(3), (referred to in argument as the date of receipt of the "first chicken wing"), notifying him of the refusal of permission to remain in Hong Kong as a refugee and of his right to apply for a review. This, in many of the cases, might have been several years after their first arrival in Hong Kong. Clearly, the question when the "decision" was made in relation to each applicant would have some impact upon whether a "time" point might have barred the application for judicial review, under Order 53 r4(1) of the Rules of the Supreme Court.

23. It will be recalled that all the applicants, without exception, have been "screened out" as refugees and are now in detention pending repatriation to Vietnam. And yet, their case is this: The court should, by an order of mandamus, direct the Director of Immigration to grant them permission to remain in Hong Kong as refugees: even though they have been determined not to comply with the Convention criteria for refugees. Such an order would stultify the whole screening process: a process which is not sought to be impeached and must be assumed for the purpose of these applications to have been lawfully carried out.

24. In our judgment, Keith, J. was entirely correct to refuse leave to issue proceedings for judicial review. We would dismiss this appeal.