DANG THU ANH MINH v. THE REFUGEE STATUS REVIEW BOARD

1997 A.L. No. 35

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

____________

____________

_______________

J U D G M E N T

_______________

1. I propose to grant the Applicant leave to apply for judicial review of the finding of the Refugee Status Review Board ("the Board") that the Applicant is not a refugee, and to extend his time for doing so. Since the Director of Immigration's practice is now normally to agree to a re-screening of an asylum-seeker from Vietnam if leave to apply for judicial review of the decision refusing to recognise the asylum-seeker as a refugee is granted, I propose to give my reasons in brief by way of guidance to the Board.

2. The three critical episodes in the Applicant's working life occurred in 1985, 1988 and 1990. In 1985, he was demoted by one grade to the grade of Government Technician. The Board thought that it was possible that that was because he was no longer qualified to hold a graduate post. That was because he had not been issued with a graduation certificate since his thesis was believed to advocate politically incorrect views. It may well be that the Board was entitled to take the view that that treatment, though for a Convention reason, namely his political opinions, and though unfair, did not amount to persecution.

3. In 1988, the Applicant was further demoted by being sent to work on a pig farm. In respect of this demotion, the Board's view was this was "a discriminatory act of revenge by one corrupt official and not persecution by the state". In my view, it is arguable that the fact that the treatment of the Applicant had not been officially sanctioned did not prevent it from being capable of amounting to persecution: see para. 65 of the Handbook on Procedures and Criteria for Determining Refugee Status issued by the UNHCR, and Tran Van Tien v. The Director of Immigration (No.2) (1996) 7 HKPLR 186 at p.212 F-G. Since the demotion was the result of the political views which the Applicant had expressed at the National Agricultural Conference, it is arguable that his demotion was for a Convention reason, namely his political opinions.

4. In 1990, the Applicant was dismissed from his coveted government employment. The Applicant's evidence was that he had been making suggestions to his superiors about how profit levels could be improved and how corruption could be eliminated. However, the Board said: "There is no evidence that his dismissal was linked to any Convention ground". If, by that, the Board meant that there was no evidence that his dismissal was linked to the opinions he was expressing, it is arguable that that was wrong. On the face of it, there was an obvious link between the views he had been expressing and his ultimate dismissal. It is suggested that what the Board really meant was that the views which he was expressing did not amount to political opinions, and that even if his dismissal was because of the views he was expressing, his dismissal was not for a Convention reason. In my view, it is at least arguable that if that was the Board's view, it was one which the Board could not reasonably reach.

5. The Board's ultimate finding in para.16 of its Reasons was that the Applicant did not in 1993 have a well-founded fear of persecution for a Convention reason if he was returned to Vietnam. That view was based, in part at any rate, on the Board's finding that the Applicant had not encountered persecution for a Convention reason in the past. The points to which I have referred in this brief judgment are, in my view, capable of undermining the basis on which the Board made that crucial finding of fact. For that reason, I grant the Applicant leave to apply for judicial review.