TRAN VAN TIEN and Others v. THE DIRECTOR OF IMMIGRATION and Another

1995 M.P. No. 3644

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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R U L I N G

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INTRODUCTION

1. The Respondents object to the admissibility of large parts of the evidence on which the Applicants propose to rely. By far the largest part of the evidence to which objection is taken is evidence relating to the conditions to which ethnic Chinese in Ha Tuyen Province were subjected during the years in which the Applicants were forced to live there, and to the conditions to which ethnic Chinese have been subjected there since. The reason why the Applicants wish to rely on that evidence is to show that the members of the Refugee Status Review Board ("the Board") who made the decisions challenged reached a number of erroneous conclusions on those issues. The basis on which the Respondents contend that this evidence is inadmissible is that it was not before the Board when it made the decisions challenged. Accordingly, it does not come within any of the categories of evidence admissible on applications for judicial review.

THE CATEGORIES OF EVIDENCE ADMISSIBLE ON APPLICATIONS FOR JUDICIAL REVIEW

2. Broadly speaking, there are three categories of evidence which have conventionally been regarded as admissible on applications for judicial review. They were conveniently identified in R. v. The Secretary of State for the Environment ex p. Powis [1981] 1 WLR 585 as follows:

(i) Since the Court is exercising a supervisory jurisdiction, it is necessary for the Court to see the material which was before the person or body who made the decision challenged. If there is doubt as to what that material was, the Court can receive evidence to resolve that doubt.

(ii) If the jurisdiction of the person or body who made the decision challenged depends on a question of fact or if there is an issue as to whether essential procedural requirements were observed, the Court can receive evidence to determine the jurisdictional fact or procedural error.

(iii) If it is alleged that the proceedings were tainted by misconduct on the part of the person or body who made the decision challenged or of one of the parties to the proceedings, the Court can receive evidence to prove the particular misconduct alleged.

The evidence of "country conditions" upon which the Applicants rely does not fall within any of these categories.

3. By what route, then, can the evidence be admitted? Mr. Paul Harris for the Applicants, in a careful and moderate submission, has argued that there is a fourth category of evidence admissible on applications for judicial review. He contends that where a decision in public law is made in ignorance of or contrary to the true facts, evidence is admissible to demonstrate the true facts on which the decision should have been based. That submission is based on a case similar to this in which asylum-seekers from Vietnam, who had been screened out by immigration officers and the Board, sought to have admitted in evidence, on their applications for judicial review, evidence of "country conditions" in Vietnam. The case is R. v. The Director of Immigration and The Refugee Status Review Board ex p. Do Giau [1992] 1 HKLR 287. Mortimer J. (as he then was) declined to admit the evidence. His ruling is set out in an annexure to his judgment at pp.334-341. An appeal from his ruling was dismissed by the Court of Appeal in Nguyen Ho v. The Director of Immigration [1991] 1 HKLR 576. However, Cons V.-P., in the course of a judgment with which the other members of the Court of Appeal agreed, did not rule out the possibility of evidence demonstrating errors of fact on the part of the decision-maker being admissible. He cited various authorities in the United Kingdom and New Zealand, including the following observation of Lord Wilberforce in The Secretary of State for Education and Science v. Tameside M.B.C. [1977] AC 1014 at p.1047D:

"If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist ..."

In the light of those authorities, Cons V.-P. concluded at p.583 C-D:

"I would most respectfully suggest that this approach must be in accordance with basic principles, for if the Court may properly interfere when the inferior tribunal has not taken into account some matter which it should have done, the Court must also be able to do so when the inferior tribunal has got that matter wrong. But it must be something that is plainly wrong or, as the judge below put it, 'established unassailably to be erroneous'. Courts must in no circumstances allow themselves to be enticed into the evaluation of a fact which is properly within the exclusive jurisdiction of the tribunal."

4. Accordingly, subject to two reservations, the evidence of country conditions on which the Applicants wish to rely will be admissible if that evidence shows that what the members of the Board thought about the prevailing country conditions was plainly wrong or established unassailably to be erroneous. I shall refer to one of the two reservations later in this ruling, but the other reservation relates to a point taken by Mr. Harris. He argues that the words "established unassailably to be erroneous" are not intended to mean "plainly wrong"; otherwise, there would have been no need to add them. They must be construed as importing a degree of incorrectness different from "plainly wrong". What they should be construed as meaning is "highly likely to be wrong". After all, if the test of admissibility is whether the facts upon which the decision-maker relied were plainly wrong, there would hardly be any occasions at all on which evidence would be admissible under this category of admissible evidence.

5. I cannot accept this argument. Cons V.-P. used the words "established unassailably to be erroneous" because those were the words used by Mortimer J. He was therefore saying that the words "plainly wrong", which he preferred, did not mean anything different from the words "established unassailably to be erroneous". Indeed, it is difficult to see what differences there are, if any, between the two phrases. Having said that, it was plain, I think, that the reason why Mr. Harris sought to argue that a less stringent test than the "plainly wrong" test had been adopted by the Court of Appeal was because he realistically recognised that I am bound by whatever the Court of Appeal said should be the test to be applied. In those circumstances, I should record the fact that Mr. Harris reserved his right to argue elsewhere that the Court of Appeal should have applied a less stringent test.

6. In one respect, the test which the Court of Appeal laid down is an unusual one. The test is not whether the evidence upon which the Applicants seek to rely is capable of demonstrating that the facts on which the decisions were based were plainly wrong. The test is whether the evidence demonstrated in fact that the facts on which the decisions were based were plainly wrong. The admissibility of the evidence is therefore dependent on a concluded, as opposed to a prima facie, view as to the correctness of the facts on which the decisions were based. Accordingly, it was necessary for Mr. Harris to identify with precision those facts on which the decisions were based which he contended were plainly wrong. And it was then necessary for me to examine, with the help of Mr. Harris and Ms. Dale Watson for the Respondents, all the evidence to determine whether those facts were plainly wrong.

THE FACTS ALLEGED TO BE PLAINLY WRONG

7. The principal fact on which the Board's decisions were based which the Applicants contend was plainly wrong was that there had been a significant improvement in the treatment of ethnic Chinese in Ha Tuyen Province by the time when their applications for refugee status were being considered by the Board. Mr. Harris accepted that that improvement in treatment was expressly referred to in the reasons for only one of the four decisions of the Board under challenge. On what basis is it said, therefore, that the Board nevertheless took into account its belief that there had been an amelioration in the conditions of ethnic Chinese in Ha Tuyen Province? The answer lies in one of the affirmations made by Wilma Croxen, who is now the Chairman of the Board, and who has been a member of the Board since 1989. In para. 3 of her 3rd affirmation, she pointed out that "the whole mass of country conditions will not usually fall for consideration in every case even though each case is decided against the general background". She then set out the general background against which members of the Board made their decisions in individual cases. It is necessary to highlight the relevant passages in that affirmation, because that is where the Applicants say the errors of fact which the Board made are to be identified.

8. It is well-known that diplomatic relations between Vietnam and China deteriorated rapidly in 1978. Many ethnic Chinese fled or were forced to leave Vietnam for China. Many did so before the border was officially closed in July 1978, but large numbers managed to make it across the border after that. Mrs. Croxen described this "mass exodus" as causing serious problems for the ethnic Chinese who remained in Vietnam. They were considered "a fifth column within Vietnam, capable of guiding incursive Chinese soldiers to local strategic targets". As a result, they were expelled from the Communist Party, the Administration and the Army, and they were forced to move from their homes.

9. It is also well-known that in 1979 the Vietnamese Government began confining all ethnic Chinese in the northern provinces to isolated villages some distance from the Chinese border. Ha Tuyen Province is the northernmost province of Vietnam, and Mrs. Croxen accepts that many ethnic Chinese were banished there. She described the conditions of those who moved to or within Ha Tuyen Province as "undeniably harsh", and she spelt out in her affirmation the nature of the treatment which Board members believed ethnic Chinese had been subjected to there.

10. With that in mind, I turn to those parts of her affirmation which dealt with what became, in the course of time, the gradual improvements in the plight of ethnic Chinese in Vietnam in general, and those in Ha Tuyen Province in particular. On the plight of ethnic Chinese in Vietnam in general, she said this in paras. 8 and 9 of her affirmation:

"[S]ince [the mid 1980s] there were attempts by the Government to gradually reintegrate [the Ethnic Chinese] back into Vietnamese society. The goal of the authorities was to integrate them into the Socialist society but not to allow them to once again dominate economic life. 1987 was an important year for the Ethnic Chinese as the Council of Ministers and Peoples' Committee of Ho Chi Minh [City] directed that Ethnic Chinese in Vietnam were citizens of Vietnam enjoying every right under the Constitution and Laws of Vietnam. In December 1988, border trade resumed and the two States normalised the situation along the common land border. By 1990 visits to China had been made by the Secretary-General of the Communist Party and Prime Minister.

More than 900,000 Ethnic Chinese remained in Vietnam after the mass exodus and Vietnam now adopts a neutral stance for these citizens, the fifth column approach having been abandoned, and they now have largely regained their position in society. Indeed Ethnic Chinese businesses are vital to the economy of the country. The situation of a war-torn border has gone and I note from a recent news report that in 1996 trains now cross the border with ease."

On the plight of ethnic Chinese in Ha Tuyen Province in particular, Mrs. Croxen said this in para. 23 of her affirmation:

"Amelioration for the Ethnic Chinese generally in Vietnam occurred post 1987 and, even if it were to be accepted that the remoteness of Ha Tuyen delayed changes, there are clear indications from the information supplied by the applicants themselves that conditions were changing. The reissue of ID cards and Ho Khaus is consistent with the Government's statements that all Ethnic Chinese were now being recognised as citizens of Vietnam. Many of the Ha Tuyen cases speak of reduced policing from 1988 as well as visits to relatives in China being allowed over the 1988 Chinese New Year. The fact of the exoduses themselves occurring at around this time show travel outside the area was possible which indicates a lack of supervision and/or roadblocks. Some applicants have mentioned itinerant traders newly visiting the area at around this time. Presumably surplus crops or other materials to trade must have been there to attract them. In addition, families were well settled in the areas concerned and the land was by then more productive. This is borne out by reports by applicants of increased crop yields."

11. The effect of Mrs. Croxen's affirmation was that the improvement in conditions both locally and nationally for ethnic Chinese represented the received wisdom of members of the Board. Since the Board took them into account in every case, the fact that they were not referred to in the reasons for the individual decisions challenged is immaterial. The Board's view about the improvement in conditions must have been a significant factor in each of the decisions challenged. I note that Mr. Harris concentrated his attack on the Board's views expressed in para. 8 of the affirmation about the improvement of conditions nationally, but I think that the sting of his attack was really on the Board's views expressed in para. 23 of the affirmation about the improvement of conditions locally in Ha Tuyen Province. Mr. Harris did not address me on para. 23 at all, but an important aspect of his argument was that what was happening in other parts of Vietnam was not a reliable guide as to what was happening in Ha Tuyen Province from which these Applicants come.

12. There are two other matters relating to the Board's view on country conditions which Mr. Harris complains were plainly wrong. One of the points made by Mrs. Croxen in her affirmation is that the conditions experienced by the ethnic Chinese in Ha Tuyen Province has to be seen in the context of the conditions experienced by the Vietnamese themselves in rural parts of the country. In para. 13 of the affirmation, she referred to medical facilities being sparse in rural areas, and in para. 13 of the Board's decision in relation to Nong Van Sui, the first of the four test Applicants ("A1"), over whose review she presided, it was stated that the Board "does not consider that education ... is freely available to the rural communities in Vietnam". Mr. Harris challenged the correctness of those assertions.

RELEVANT CONSIDERATIONS

13. Before I announce my conclusions as to whether the Board's opinion about all these matters was plainly wrong, there are eight additional matters I should mention:

(i) In Chan Sau Mui v. The Director of Immigration (CA 60/92), the Court of Appeal said that the category of facts to which the Nguyen Ho principle applied were facts which "are objective in their nature, independently ascertainable or measurable". That is the second of the two reservations to which the Nguyen Ho principle is said to be subject. Ms. Watson claims that "country conditions" do not come within that rubric because they depend on matters of evaluation which Nguyen Ho made clear are within the exclusive province of the Board. I reject this argument. In my view, it proceeds on a misunderstanding of what the Court of Appeal was referring to in Nguyen Ho when Cons V.-P. spoke of the evaluation of the facts being within the exclusive jurisdiction of the decision-maker. What he was referring to was the relevance of the facts and the weight to be given to them. That is, in my view, precisely what Mortimer J. was referring to in Do Giau at p.315 when he was referring to the evaluation of the evidence being the exclusive province of the immigration officer. But that does not prevent the Court from inquiring into whether the facts assumed or found by the decision-maker are in fact correct. One only has to remember the passage in Lord Wilberforce's speech in Tameside, to which I have already referred, to see that that was what was meant. I appreciate that, for example, the Board's opinion that conditions for ethnic Chinese in Ha Tuyen Province had improved was a conclusion based on a number of primary facts, but that conclusion is as much a matter for the Court to inquire into as the primary facts on which it is based.

(ii) In determining whether the Board's views on country conditions are plainly wrong, I should not overlook the fact that the Board is very much a specialist tribunal. It spends its whole time dealing exclusively with asylum-seekers from one country. Its members will have built up considerable expertise in the field. Mrs. Croxen herself says that she has sat on thousands of cases. I must not, of course, defer to members of the Board, and I must make up my own mind as to whether the Board's view of country conditions was plainly wrong. But the fact that the opinions challenged come from members of a specialist tribunal should not be ignored.

(iii) To assist the Board in its task of identifying country conditions, the Board has access to a variety of published and unpublished materials. These materials are collated by the Intelligence Unit of the Vietnamese Refugees Division and are available to members of the Board. Those materials which are relevant to the pace of improvement in conditions for ethnic Chinese in Ha Tuyen Province have been exhibited, and I have therefore been able to see the documentary materials on which the Board's conclusions have been based. But those materials are only part of the picture. Every new case which a member of the Board considers will add to the member's knowledge of country conditions. In other words, members of the Board acquire knowledge of country conditions incrementally in the performance of their duties. What they hear about Vietnam case by case adds to their fund of knowledge.

14. That point emerges from a report prepared in May 1993 by Dr. Hays, a Deputy Chairman of the Board. His report was based on a number of cases of asylum-seekers from Ha Tuyen Province. The conclusion which he reached on the extent to which improvements have occurred in the conditions of ethnic Chinese living there is not the point. It is his methodology which is important. He was able to reach various conclusions on those conditions from studying the facts revealed in those cases. His report is a classic illustration of the ability of members of the Board to use the knowledge they acquire from determining claims for refugee status from asylum-seekers from Vietnam to add to their stock of knowledge about country conditions. In this respect, members of the Board are far better placed than I to judge whether their received wisdom was plainly wrong, because, unlike them, all that I have to go on are the documentary materials, as amplified by the evidence of the Applicants and the views of two people who have recently visited Ha Tuyen Province for the purpose of making affirmations in the present case.

(iv) The two visits to which I have just referred were visits by Mr. Jeffrey Wong, an attaché at the British Embassy in Hanoi, in March, and Ms. Krista Ma, a clerk in the office of the Applicants' solicitors, last month. I have read Mr. Wong's report of this visit and Ms. Ma's affirmation about hers. I have also read the report of a visit to Ha Tuyen Province in July 1993 by Mr. Michael Ho, the First Secretary of the British Embassy in Hanoi, though this report is in a different category from that of Mr. Wong and the affirmation of Ms. Ma, in that it formed part of the materials which were available to the Board. I have borne in mind that the visits of Mr. Ho and Mr. Wong were officially sanctioned, and that it is possible that they may have been presented with a selective and sanitised picture of life in Ha Tuyen Province.

(v) In looking at the materials, I have borne in mind that the relevant date for the purpose of determining the extent to which conditions in Ha Tuyen Province had improved, and the extent to which health care and schooling was available to Vietnamese in rural communities, are the dates on which the Board made its decisions in relation to the four Applicants, i.e. March, July, September and December 1993. The materials which show country conditions at any other time are relevant only to the extent that they throw light on what the conditions were like at those times. Similarly, the materials which show country conditions in other parts of Vietnam are relevant only to the extent that they throw light on what the conditions were like in Ha Tuyen Province at a particular time.

(vi) I should add that Mr. Harris disputed even that. He said that what was important was the light which the materials threw on what the conditions were like in each of the four villages, or at any rate the districts, from which the Applicants came. That argument presupposes that there were variations in local conditions of such significance as to make the Board's view of conditions in Ha Tuyen Province as a whole as telling only half the story. In my view, that point does not go to the admissibility of evidence. That is because it does not go to whether the Board's view of the improvement of conditions in Ha Tuyen Province as a whole was plainly wrong. What it goes to is whether the Board took into account an irrelevant factor, namely its opinion that conditions had improved in Ha Tuyen Province without at the same time considering those parts of Ha Tuyen Province from which the Applicants came. However, to the extent that the point can be said to go to the admissibility of the evidence, I have borne it in mind, though it could hardly be expected that there would be direct evidence, apart from the Applicants themselves, about every village or district from which the Applicants came.

(vii) Part of the evidence on which the Applicants wish to rely is correspondence primarily between their solicitors on the one hand and the Board on the other. The purpose of exhibiting that correspondence was to show that the Board was not prepared to provide the Applicants' solicitors with documents which showed that country conditions in Ha Tuyen Province had improved. Mr. Harris asked me to infer from the Board's reluctance or inability to provide such documents that any improvements in country conditions in Ha Tuyen Province were completely undocumented. I do not think that the Board emerges well from that correspondence, but I am not able to draw the inference from it which Mr. Harris asks me to draw. The non-production of such documents could, I think, be equally attributable to the fact that the Board perceived its role as an independent quasi-judicial body, which should not be seen to be supplying information relating to country conditions to representatives of asylum-seekers whose cases they have dealt with in the past or might have to deal with in the future. Accordingly, having considered the evidence, I do not think that it throws any light on the issue of admissibility which I have to decide.

(viii) A small part of the evidence on which the Applicants wish to rely is evidence relating to the cases of those ethnic Chinese from Ha Tuyen Province who were accorded refugee status. I dealt with the argument to which this evidence was addressed when I gave judgment on the Respondents' application to set aside the leave to apply for judicial review which I had originally granted to the Applicants. But although the Applicants cannot rely on the decisions in those cases to show inconsistency on the part of the Board, they can rely on the Board's findings of fact in those cases to show that the Board's view, as expressed through Mrs. Croxen's affirmation, as to the improvement of conditions for ethnic Chinese in Ha Tuyen Province is plainly wrong. However, having looked again at the relevant exhibit (exhibit ADB2 to the 1st affirmation of Mr. Anthony Bennett), it is plain that no assistance can be derived from the documents in the exhibit. What were described as the decisions of the immigration officers turned out not to be their decisions at all. Indeed, comparing the five documents in exhibit ADB2 with the four decisions by the immigration officers in relation to the four test Applicants makes that very clear. What the documents are are merely a summary of the refugee's circumstances, so the country to which the refugee is being sent has some information about the refugee. As for the other documents in exhibit ADB2 (apart from the list of those asylum-seekers from Ha Tuyen Province screened in as refugees at the very beginning of the exhibit), they are merely the formal documents of the Board recording its findings that two particular asylum-seekers should have been screened in. They do not help because, as I mentioned in my earlier judgment, the Board gives reasons for its decisions only when asylum-seekers from Vietnam are screened out, not when they are screened in. Accordingly, having considered this evidence, I do not think that it throws any light at all on the issue of admissibility which I have to decide.

CONCLUSION

15. These, then, have been the considerations I have borne in mind in deciding whether the evidence on which the Applicants wish to rely demonstrates that the view of the Board on country conditions to which I have referred was plainly wrong. I do not propose to comment on the various strands of that evidence. It is neither necessary nor desirable that I should do so. It is not the impact of each particular document or each individual piece of evidence which is important, but the cumulative effect of the evidence as a whole. I have over the weekend read at my own pace the evidence which I was taken through in Court, and I have also read the decisions and reasons of the immigration officers and the Board relating to the Applicants, as well as those passages in Ramses Amer, "The Ethnic Chinese in Vietnam and Sino-Vietnamese Relations", Kuala Lumpur, 1991, which Ms. Watson asked me to read. My conclusion is that those views of the Board on country conditions which the Applicants challenge are not plainly wrong, nor even highly likely to be wrong.

THE 2ND APPLICANT

16. There was one finding of fact made by the Board in the case of Chu Van Cam, the 2nd of the four test Applicants ("A2"), which Mr. Harris argued was plainly wrong. A2 claimed to the Board that he had been on the run from the public security police since August 1988. He claimed that in June 1989 (wrongly referred to in his affidavit as June 1988) he visited his wife. One evening after he had been there a couple of days, a number of public security officers came to arrest him. He managed to get out of the house, but was caught on a nearby hill. He claimed that they cut and beat him with knives and sticks. Among other injuries, he received a bad cut to his neck, which has left an unsightly scar and which he attempted to show to the members of the Board who interviewed him. Mr. Harris argues that, to the extent that the Board found that this incident did not happen, the Board was plainly wrong.

17. The language which the Board used in that part of its reasons which dealt with its findings on this incident is a little opaque, but on the whole I agree with Mr. Harris that the best construction to be placed on the Board's words is that it did find that the incident did not happen. It found that it did not happen because it found that A2 had not been telling it the truth on a number of other matters. Its finding therefore was based on its perception of A2's credibility. Having read the whole of the Board's reasons relating to A2 with care, it was, in my view, open to the Board to conclude that the other matters on which the Board found A2 had not been telling it the truth were sufficient to make the Board find that he had not been telling it the truth in relation to the incident in question. It follows that the Board's finding that the incident did not happen was not plainly wrong. Nor, in my view, was it highly likely to be wrong.

THE INADMISSIBLE EVIDENCE

18. For these reasons, none of the evidence which the Applicants wish to rely upon falls within the fourth category of evidence admissible on applications for judicial review identified in Nguyen Ho. I rule that evidence to be inadmissible. That ruling relates to:

(i) para. 2 of the 1st affirmation of Mr. Bennett (to the extent that it relates to country conditions);

(ii) paras. 4-9 of that affirmation, and exhibits ADB2, ADB3, ADB4 and ADB5 to it;

(iii) paras. 2-10 and 12-13 of A1's affidavit;

(iv) paras. 2-14 and 16-21 of A2's affidavit;

(v) para. 2 to the 1st para. 15 and paras. 16-18 of the affidavit of Tran Khai Hung, the 4th of the test Applicants ("A4");

(vi) the affirmation of Ms. Ma, and the bundle of exhibits to it;

(vii) paras. 4, 7 and 9 of the affidavit of Mr. Matthew Gold, and exhibits MPG2 and MPG5 to it;

(viii) the reports for 1987, 1989 and 1990 prepared by the U.S. State Department on human rights in Vietnam in exhibit MPG4;

(ix) the references in para. 7 of Mr. Gold's affidavit to the contents of exhibit MPG6, and exhibit MPG6 itself;

(x) the references in paras. 10 and 11 of Mr. Gold's affidavit to the contents of exhibit MPG7, and exhibit MPG7 itself.

OTHER OBJECTIONS TO ADMISSIBILITY

19. I turn to the grounds of objection to other parts of the evidence relied upon by the Applicants. Para. 11 of A1's affidavit, para. 15 of A2's affidavit and the 2nd para. 15 of A4's affidavit were objected to on the basis that they alleged procedural irregularities relating to their interviews with immigration officers, whereas no such irregularities were alleged in the Notice of Application. Unlike A3, Mr. Harris did not apply to amend the Notice of Application to allege these irregularities. It follows that the evidence relating to them do not relate to any issue which I currently have to decide, and I therefore rule that those paragraphs are inadmissible as well.

20. Finally, a number of points were taken by Ms. Watson on other paragraphs of Mr. Gold's affidavit, and on a number of paragraphs in the 2nd affirmation of Mr. Robert Brook. The objection was that they amount to comment and submission rather than evidence. That they undoubtedly do. But it is not uncommon in Hong Kong for affidavits and affirmations to remind the Court of the evidence relied upon by other parties to explain the relevance of what the deponent is about to say. For my part, I find that practice helpful. Mr. Gold and Mr. Brook are not allowed, of course, to express their own opinions on the effect of the evidence, and to the extent that they do, their evidence is inadmissible. But I can see for myself what is comment and what is not. I shall ignore what is comment and take account of what is not. I do not propose, therefore, to tinker further with Mr. Gold's affidavit or to tinker at all with Mr. Brook's affirmation. Ms. Watson will simply have to trust my ability to sort out the wheat from the chaff.

(Brian Keith)

Judge of the High Court