XCHRX TRUONG DIEN v. THE REFUGEE STATUS REVIEW BOARD

1997 A.L. No. 22

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ADMINISTRATIVE LAW LIST

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R U L I N G

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1. The question is whether there are plausible allegations which, if substantiated at trial, would demonstrate that the decision was not reached in accordance with law. Put another way, is there a reasonable suggestion that on further investigation impropriety, irrationality or illegality might be shown?

2. I am well aware that this has been an application on notice for leave, that I have heard very full argument from both sides, but for practical reasons there is not the time to consider these papers fully as one would if this were a hearing of the substantive application, or if this was an ordinary application for leave, with a few days perhaps to read the papers and consider the submissions.

3. Since the allegations go to the question as to whether there has been a fundamentally flawed analysis of the evidence, it follows that caveats against Dead Sea Scroll type examinations notwithstanding, a court would inevitably be assisted by a proper study of the interviews and the evidence upon which the Board reached its conclusions.

4. I fully accept Mr Marshall's reminder that this court exercises a supervisory jurisdiction, and I am not in a position to second-guess the Board's expertise on country conditions nor its view of the applicant as a witness. But if there is some material which, without further examination can constitute a plausible allegation that the tribunal of fact has ignored relevant evidence or clearly misinterpreted other evidence, that cannot be ignored and should be examined.

5. Central to the Board's decision is the temple destruction incident and whilst some of the conclusions of the Board seem to me, even at this stage, clearly unassailable or rather some of its reasoning appears perfectly sound and well within its peculiar realm of experience, I am not prepared at this stage to say that there is self-evidently noting in the attack which Mr Gold mounts on several of the points, in particular the first five. If the basis for those conclusions were to turn out to be demonstrably without foundation and based on an erroneous reading of the evidence, then one would have to ask to what extent the decision of the Board is thereby impugned, if at all. In saying this I do not preclude the applicant from developing such points as he may be advised to develop as to the Board's analysis of the effect of apparent persecution of his family and himself.

6. None of this is to encourage the applicant in the application and I am only persuaded on a fine balance to grant leave. It is suggested that if it is a question of time for me to consider the papers fully before deciding whether leave should or should not be granted, I should grant an injunction and then decide the matter of leave later. I do not think that is a practical way forward and in the long run may cause more delay than the course I now propose to take. In any event, I am sufficiently familiar with the papers to say that on balance leave should be granted.

7. On the applicant's solicitor's undertaking, to file by 5 p.m. on 10th May an application for leave to extend time in which to apply for leave, I shall extend time to make the application. I grant leave to apply for judicial review of the Board's decision notified to the applicant on 20th July 1994. I shall order the Director of Immigration not to remove the applicant from the jurisdiction until determination of the application for judicial review or until further order.

[Argument]

8. I am invited by Mr Marshall not to grant the injunction which I was minded to grant. In support of that contention, he argues that the prospects of success of the substantive application are low and that if one combines with that consideration the fact that the Director of Immigration has here a public duty to perform, a duty which is increasing in its importance at this juncture of Hong Kong's attempt to resolve finally the whole question of repatriation of immigrants from Vietnam, the court should exercise its discretion bearing those factors in mind, and that the balance of convenience lies in favour of refusing an injunction. In support of this contention, he refers me to passages in the speech of Lord Bridge in Regina v. Secretary of State for Transport, Ex parte Factortame Ltd. And Others (No.2) at pp.659, 660.

9. I accept that on the information which I have, it cannot be said that this applicant has a high chance of success. But I have taken the view rightly or wrongly, that he has an arguable case. But the decision reached against him is a decision reached in a manner which may result in an order that would be quashed. If that is so, it will have properly to be reconsidered. There is evidence that members of this applicant's family were considered politically hostile in the Vietnamese regime and have suffered in consequence. I cannot say that if the application for judicial review were to be successful, that the next decision of the Immigration Officer or of the Board would necessarily be the same, for that is to doubt the honesty of the approach of those who make these decisions and no one suggests that there is any ground to do so.

10. I perhaps in my comments during argument by Mr Marshall, gave too little weight to the real need of the public authorities to get on with the task of repatriation and the difficulties which they face in that regard, and I sympathise too with the frustration felt for these last minute applications. But the applicant has but recently received legal aid for this application, and only very recently been told that he is to be repatriated, so that I do not think it fair to hold that as a factor against him.

11. In considering the balance of convenience and the exercise of discretion, the facts of each case will be vital and none more so than a comparison between the facts of this case and those of Factortame other facts. If I were wrongly to refuse this injunction, and this applicant were tomorrow to be placed upon a flight to Vietnam, there, in reality, would lie the end of the matter. Were it to transpire that the Board's decision had wrongly been taken, the result would be to have deprived the applicant of the chance of a re-hearing and of being screened in. In a case involving the liberty of the subject, as this case does, it would take a very weighty fact indeed to persuade a court to order removal in any event and I am not prepared to do so. I shall grant the injunction.