VO THI DO and Others v. THE DIRECTOR OF IMMIGRATION

HEADNOTE

[(i) Section 13A(1) of the Immigration Ordinance (Cap. 115) cannot be construed as having imposed a duty on an immigration officer, during the time when the policy of the Hong Kong Government was to grant asylum-seekers from Vietnam first asylum in Hong Kong, to permit an asylum-seeker from Vietnam to remain in Hong Kong as a refugee pending his resettlement elsewhere.

(ii) Circumstances can exist in which policy-makers may lawfully change their policies with immediate effect, even if that would thwart such legitimate expectations as their existing policies had given rise to.]

1996 No. MP 3434

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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INTRODUCTION

1. The Applicants in these proceedings for judicial review are asylum-seekers from Vietnam. There are 1,241 of them. They all arrived in Hong Kong between 16th June 1988 and 2nd June 1989. Those dates are significant in the history of Hong Kong's treatment of asylum-seekers from Vietnam. 16th June 1988 was the date when the Government's new policy of no longer automatically accepting asylum-seekers from Vietnam as refugees took effect. 2nd June 1989 was the date when the legislative amendments which provided for a new screening process to determine whether asylum-seekers from Vietnam should be treated as refugees came into operation. Asylum-seekers from Vietnam who arrived in Hong Kong between those dates fell, so it is said, between the two regimes. On the one hand, their arrival after 16th June 1988 meant that they were denied the automatic grant of refugee status. On the other hand, their arrival before 2nd June 1989 meant that they might not enjoy the sophisticated system established to distinguish those who were escaping from persecution from those who simply wanted a better and more prosperous life overseas, though Mr. William Marshall Q.C. for the Director of Immigration has told me today that even though the Applicants arrived in Hong Kong before 2nd June 1989, they were in fact screened in accordance with the procedures which were formally established after their arrival.

2. The 1,241 Applicants were detained on their arrival in Hong Kong. In due course, their claims for refugee status were refused. They have been detained in Hong Kong ever since. In these proceedings, the Applicants seek, amongst other things, the quashing of the decisions of the Director of Immigration refusing to permit them to remain in Hong Kong as refugees, and the decisions of the Director of Immigration to detain them under a particular provision of the Immigration Ordinance (Cap. 115).

THE COURSE OF THE PROCEEDINGS

3. The Applicants' application for leave to apply for judicial review of those decisions was placed before me on 7th October. I decided that I needed to hear from the Director of Immigration before I was able to decide whether leave should be granted. The hearing is taking place before me today, a Saturday, because a decision as to whether I should grant leave is urgently required. That is because the Director of Immigration proposes to include 43 of the Applicants on a flight for persons to be repatriated to Vietnam under the Orderly Repatriation Programme which is scheduled for next Wednesday. The Director of Immigration's policy is that once a Vietnamese migrant has obtained leave to apply for judicial review of the decision to refuse to accord him refugee status, the Director of Immigration will not normally effect the removal of the migrant from Hong Kong pending the substantive hearing of the application. Accordingly, the Applicants will only come within the terms of that policy if, by next Wednesday, I have granted them leave to apply for judicial review of the decisions refusing to permit them to remain in Hong Kong as refugees.

LEGISLATIVE AUTHORITY

4. The Applicants argue that the Director of Immigration had no legislative authority to deny them permission to remain in Hong Kong on the basis that they were not refugees. I do not think that that argument has any chance of success. It is well established that, except for Hong Kong permanent residents as defined in Sch. 1 to the Immigration Ordinance who have a right of abode in Hong Kong, no person who arrives in Hong Kong has an automatic right under Hong Kong law to remain in Hong Kong. However, since the policy of the Hong Kong Government prior to 16th June 1988 was to grant asylum-seekers from Vietnam who arrived in Hong Kong first asylum in Hong Kong pending their resettlement elsewhere, immigration officers had to be given the necessary power to put that policy into effect. Section 13A(1) of the Immigration Ordinance was plainly enacted for that purpose. It provided:

"An immigration officer may permit any person who was previously resident in Vietnam ... to remain in Hong Kong as a refugee pending his resettlement elsewhere, and ... may order him to be detained in a refugee centre specified by the immigration officer."

The argument that on its proper construction, when seen against the background of the policy which it was intended to implement, section 13A(1) has to be construed as imposing not merely a power but also a duty on immigration officers to permit asylum-seekers from Vietnam to remain in Hong Kong as refugees pending their resettlement elsewhere is, in my judgment, simply not arguable. Since section 13A(1) was enacted to give immigration officers the power to put the Government's policy into effect, immigration officers were just as entitled not to exercise their powers under section 13A(1) if the policy was changed. Once the policy was changed, it was opened to immigration officers to treat asylum-seekers from Vietnam who arrived in Hong Kong as people who did not have an automatic right to remain in Hong Kong, and only to permit them to remain in Hong Kong, as refugees pending their resettlement elsewhere if they satisfied the criteria for being accorded refugee status.

5. The Applicants' case that the Director of Immigration was obliged to permit them to remain in Hong Kong is based in part on the fact that, from 16th June 1988, the Director of Immigration used a different statutory power to detain asylum-seekers from Vietnam from that which he had used hitherto. Prior to 16th June 1988, he had used section 13A(1). From 16th June 1988, he used section 13D(1), which provided, so far as is material:

"... any resident or former resident of Vietnam who arrives in Hong Kong ... [without a valid travel document] may ... 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."

The Applicants contend that their detention under section 13D(1) was unlawful because, in enacting section 13D(1), the legislature never intended it to be used for the purpose of detaining asylum-seekers from Vietnam while their applications for refugee status were being considered.

6. That argument, in my view, is of no avail to the Applicants at all. I say that for two reasons:

(i) Even if their detention was unlawful, that did not mean that they had to be permitted to remain in Hong Kong as refugees pending their resettlement elsewhere. Permitting them to remain in Hong Kong pending their resettlement elsewhere cannot be equated with detaining them for that purpose. The unlawfulness of the latter does not impact on the legality of the former.

(ii) As it is, I do not think that their detention under section 13D(1) can possibly be said to have been unlawful. I explained at some length my understanding of the inter-relationship between the detention powers in section 13A(1) and section 13D(1) in Re Chung Tu Quan [1995] 1 HKC 566 at pp. 572G-573I. I concluded that prior to 16th June 1988 the power of detention given by section 13D(1) was exercised in relation only to those few asylum-seekers from Vietnam to whom the policy of according automatic refugee status did not apply for one reason or another. In my view, once the policy of according automatic refugee status was reversed, the practical fetter on the exercise of the power of detention in section 13D(1) was removed. Accordingly, the detention of the Applicants under section 13D(1) cannot possibly be described as unlawful.

LEGITIMATE EXPECTATION

7. The Applicants claim in addition that they are entitled to relief because they had a legitimate expectation when they left Vietnam that they would be granted permission to remain in Hong Kong as refugees. In order to evaluate that argument, I am prepared to assume in the Applicants' favour that when they left Vietnam they did indeed expect to be allowed to remain in Hong Kong as refugees pending their resettlement elsewhere. That expectation would have been based on what they had heard, whether directly or indirectly, from asylum-seekers from Vietnam who had been permitted to remain in Hong Kong as refugees pending their resettlement elsewhere. That is what those Applicants who have made affirmations say, and it was what one would have expected. Although they would not have known what the policy of the Hong Kong Government was, what they had heard about the experience of others would have led them to assume that the policy of the Hong Kong Government then in operation was to permit asylum-seekers from Vietnam to remain in Hong Kong as refugees pending their resettlement elsewhere.

8. Mr. Marshall told me that, following the announcement by the Government of its change of policy, a number of the Applicants had admitted when they were interviewed on their arrival in Hong Kong that they had known before they left Vietnam that whether they could remain in Hong Kong as refugees would depend on whether they satisfied the criteria for being accorded refugee status. However, that is a question of evidence which I ought not to take into account at the leave stage, and for present purposes I ignore it.

9. However, it does not begin to follow that such expectation as the Applicants had gave them the right in law to have that expectation fulfilled. The crucial question, in my view, is whether the Applicants had any expectation that that policy would continue to be the policy of the Hong Kong Government when they arrived in Hong Kong. If they had no expectation of that, they could have had no legitimate expectation that they would be permitted to remain in Hong Kong as refugees pending their resettlement elsewhere. All they would have had was a hope that the policy would not be changed in the meantime. Call that hope an expectation if you will. But that expectation could not, in my view, have given rise to a right in law for the expectation to be fulfilled unless they had good reason to think either that the policy was cast in stone, or that even if it was changed while they were on their way to Hong Kong the old policy would still apply to them. Since their individual expectations were based on anecdotal stories about the experience of others, and since those stories only related to what had happened in the past, there was nothing in what they 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 Applicants 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.

10. I should add this. Informed commentators on the influx into Hong Kong of asylum-seekers from Vietnam would have realised that the Government's first asylum policy was unlikely to last indefinitely. That was because the policy was based on the understanding that the rate of arrivals in Hong Kong and in other countries of first asylum would be matched by a programme of resettlement internationally. If the number of those resettled failed to match the number of those who arrived, it would have been apparent to informed observers that the Government would be likely to re-think its policy. Having said that, though, I appreciate that it is the Applicants' expectations which have to be addressed, and not the expectations of more informed observers of the political scene.

11. There is a further problem with the Applicants' reliance on the doctrine of legitimate expectation. Let us assume that the Applicants had a legitimate expectation that they would be permitted to remain in Hong Kong as refugees pending their resettlement elsewhere. In my view, it might still be possible for the Government to change its policy, even though that would thwart such legitimate expectation as the policy had created, while at the same time remaining within the law. The issue is discussed DeSmith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed., paras. 13-031 - 13-035. What it comes to is this. There will often be a tension between on the one hand a policy-maker's wish to change a policy with immediate effect, and on the other the effect of that change of policy on those whose interests will be damaged if the change is implemented immediately. The balancing exercise between those conflicting interests is for the policy-maker and not for the courts to resolve. The policy-maker must, of course, give proper weight to the impact which an immediate change of policy will have on those who had a legitimate expectation that they would continue to be treated in accordance with the existing policy. But suppose that, having considered that, the policy-maker concludes that the policy considerations which caused him to change his policy made it necessary, or even just desirable, for the change of policy to take effect immediately, and that there should be no exception to it. Provided that that decision cannot be attacked on the ground of irrationality or as an abuse of discretionary power, the change of policy can still be lawful even though legitimate expectations are thereby thwarted.

12. In this case, the Applicants' own evidence shows that, in deciding that the change of policy should have immediate effect, the Government did not ignore the impact of that decision on those who were on their way to Hong Kong at the time, or on those who might leave Vietnam for Hong Kong some time in the near future before the new policy became widely known in Vietnam. When the Chief Secretary announced the change of policy in the Legislative Council on 15th June 1988, he was asked about the position of asylum-seekers from Vietnam who came into those categories. His response to that question showed that that concern had been addressed.

13. In my judgment, it is not possible to argue with any force that the impact which the change of policy would have had on asylum-seekers from Vietnam who came into those categories so outweighed the need for the change of policy to have immediate effect that the immediacy of the change of policy can be characterised as irrational or as an abuse of discretionary power. The Government was entitled to take the view that the arguments in favours of a change of policy, and an immediate change of policy at that, were overwhelming. As I said in Chung Tu Quan at p.570G-I:

"By 1988, the international community had become less ready to accept migrants from Vietnam for resettlement. The result was that the pattern of resettlement was failing to match the pattern of arrivals - so much so that there had accumulated what Cons V.-P. described in Nguyen Ho v. The Director of Immigration [1991] 1 HKLR 576 as 'a vast backlog of [migrants] held [in Hong Kong] with little or no prospect of imminent resettlement elsewhere'. Moreover, the received opinion was that most of the migrants arriving in Hong Kong from Vietnam would not merit refugee status under the relevant international agreement, namely the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol to it."

If the policy was not to apply until some time in the future, that would, as the Chief Secretary said, have led to a large number of people leaving Vietnam then in order to meet the deadline. If the policy was not to apply to anyone who had left Vietnam by the date the new policy was announced, that would inevitably have led to disputes in many individual cases as to when they actually left Vietnam. It was open to the Government in those circumstances to decide that there should be a clean break from the past. As the Chief Secretary said:

"... whenever there is a change of policy of this nature, some people are inevitable caught up in that change."

CONCLUSION

14. For these reasons, I do not think that either of the Applicants' grounds for applying for judicial review have any real chance of success. I therefore refuse them leave to apply for judicial review of the decisions they seek to challenge.