NGUYEN HO AND OTHERS v. DIRECTOR OF IMMIGRATION AND ANOTHER

Headnote

Admissibility of evidence in proceedings for Judicial Review.

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JUDGMENT

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Sir Derek Cons, VP:

1. Ever since 1975 a number of people commonly known as the Vietnamese boat people have left Vietnam in search of asylum and resettlement elsewhere. In the beginning those arriving in Hong Kong were automatically treated as refugees and held here pending resettlement elsewhere. However in more recent years the pattern of resettlement has failed to match the pattern of arrival, so much so that by 1988 there had accumulated a vast backlog of boat people held here with little or no prospect of imminent resettlement elsewhere. For that reason the policy of granting automatic refugee status was discontinued as from the 15th June 1988. Thereafter arrivals who chose not to continue their travel further would only be accorded refugee status if they. fell within the definition of a refugee contained in the 1951 United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol thereto. Those who did not fall within that definition would face indefinite detention and possible repatriation.

2. The Convention and the Protocol as such do not apply to Hong Kong. Though the United Kingdom has signed both agreements, they have not been extended to Hong Kong as they have to other dependent territories.  The use of the definition was part of an understanding reached between the Government of Hong Kong and the United Nations High Commission for Refugees ("UNHCR") by which in effect the application of the Convention and Protocol was extended to Hong Kong, thereby restricting the ambit of the discretion otherwise conferred on Immigration Officers by Section 13A (1) of the Immigration Ordinance. This has been common ground throughout these proceedings.

3. It may be convenient here to set out the definition of a refugee:

"any person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country."

It is to be noted that the definition contains both a subjective and an objective element, i.e. the possession of the fear and that the fear is well-found.

4. To implement the new policy a screening process was set up in consultation with the UNHCR. The first system introduced proved too cumbersome in practice and was subsequently streamlined into the process applied in relation to the cases with which we are now concerned. Put simply the asylum-seeker is interviewed by an Immigration Officer on the basis of a questionnaire drafted by the UNHCR. The officer's decision, which is recorded on the file together with his reasons therefore, is then passed to a Senior Immigration Officer or Chief Immigration Officer depending on the apparent complexity of the case for endorsement or review. If ultimately the refugee status is denied the applicant will be notified officially by the Director of Immigration.

5. In consideration of individual applications the Immigration Officers are required to apply the guidelines contained in a Handbook on Procedures and Criteria for Determining Refugee Status published by the office of the UNHCR in January 1988. The officer has also the assistance of Guidance Notes for Officers of the Vietnam Refugees Division, a booklet which contains a synopsis of the UNHCR Handbook and additional information prepared by a Principal Immigration Officer of that Division.  In audition 6, or perhaps 7, of the 20 officers who figure in the cases touched upon by this appeal had the benefit of attendance at a seminar organised by the Department on the 18th March 1989.

6. Appeal against rejection is by way of review by the Refugee Status Review Board, a body set up under Section 13G of the Ordinance. In preparation for the review the asylum seeker may have assistance from his own legal representative or from a member of the Agency of Volunteer Services, an organisation which we understand consists of lawyers from various jurisdictions who give their services free of charge. The case files of all applicants rejected are automatically sent to this Agency. Neither the asylum-seeker nor his legal representative is entitled to be present at the review but the Board may request the attendance of the asylum-seeker at its discretion.

7. There is no appeal from the decision of the Board, but the avenue of judicial review has not been closed. That avenue has been taken by the 9 Appellants in the present instance, all of whom were denied refugee status by Immigration Officers, the Board in each case subsequently refusing to interfere. In the court below the Appellants sought various orders of certiorari and mandamus, and declarations in respect of every stage of the screening process.

8. During the course of the nearing before Mortimer, J., Mr. Fung, who appears for all 9, sought to introduce "expert" evidence of conditions in Vietnam, firstly in the form of particular written testimony from a member of the Institute of East Asian Studies in the University of California and from a journalist who was born in North Vietnam and has lengthy personal experience of persecution and imprisonment until he escaped in September last year; and secondly in the form of extracts from reports published by Amnesty International and by the International League of Human Rights. This evidence forms part of a much larger body of material contained in a box folder which has been labelled Bundle B.

9. Objection to the admission of such evidence was taken by Mr. Thomas who appears for the Director of Immigration and the Board. He is fearful that if allowed it might eventually place an impossible burden on the authorities, bearing in mind the number of screened-out boat people currently held in Hong Kong and the infinite variety of conditions in Vietnam that might be put forward for consideration. After argument extending over some days the judge rejected the application. The sole question for our consideration is whether he was right to do so. In the meantime he has adjourned the further nearing of the applications.

10. The principles upon which fresh evidence may be admitted in applications for judicial review have been set out by the English Court of Appeal in R. v. Secretary of State for the Environment: ex. p. Powis [1981] 1 WLR 585 and accepted in general by this Court in Re PC 17503 Lo Wing Tong [1990] 1 HKLR 325 at 337. I do not see these principles as having been extended by Bugdaycay v. Secretary of State for the Home Department [1987] 1 AC 514. The report gives little indication of when or how the evidence there relied upon came into those proceedings and Lord Bridge is careful to point out, albeit with respect to a different aspect of judicial review, that refugee status questions are not to be treated differently (p. 523) although within the limitations of judicial review the court is entitled to submit decisions thereon to a more rigorous examination (p. 531). A similar view was expressed by this Court in Madam Lee Bun & Lee Ching Ming v. Director of Immigration Civil Appeals 54 & 55/90 unreported 29th June 1990.

11. Mr. Fung submits that the proposed evidence should be admitted for any of 3 ,reasons. The first is set out in the first part of the first ground of appeal contained in the Re-amended Notice of Appeal:

or in the alternative words of the judge below:

"This same point is put more bluntly (but it amounts to the same argument) that evidence can be given in this regard to show that the tribunal whose decision is under attack was incompetent to carry out its decisions fairly."

That an Immigration Officer could not properly carry out his duties in this respect without some knowledge of the conditions which pertained in Vietnam is, I think, self-evident.  But if authority is wanted it can be found, for example, in R. v. Secretary of State for the Home Department: ex. p. Sivakumaran [1988] AC 958 at 992 where Lord Keith said:

"It is a reasonable inference that the question whether the fear of persecution held by an applicant for refugee status is well-founded is likewise intended to be objectively determined by reference to the circumstances at the time prevailing in the country of the applicant's nationality."

and later, when referring to possible persecution, at 993:

"whether that might happen can only be determined by examining the actual state of affairs in that country."

It is reflected too in the United Nations Handbook where it says at paragraph 42:

"As regards the objective element, it is necessary to evaluate the Statements made by the applicant. The competent authorities that are called upon to determine refugee status are not required to pass judgment on conditions in the applicant's country of origin. The applicant's statement cannot, however, be considered in the abstract, and must be viewed in the context of the relevant background situation. A knowledge or conditions in the applicant's country of origin - while not a primary objective - is an important element in assessing the applicant's credibility."

12. In Mr. Fung's submission the need for fresh evidence is to illustrate, by comparison with the evidence already before the judge of what had in fact been made available to the Immigration Officers or the Board (which material is to be found in Bandles C and F), what was not known to those two decision-makers; or, as he frequently put it, to show the lacunae that existed in their knowledge. To that end Mr. Fung has taken us through the relevant affidavits, reports and other documents by way of a detailed analysis under various heads of "Targets of Persecution" and "Forms of Persecution", some of which latter he suggests to be peculiar to Vietnam. They are succinctly set out in paragraphs 17 to 19 of his skeleton argument, although some items have been removed in the course of his reply this morning.

13. In my view this approach to the admission of fresh evidence is not open to the Applicants. It finds no place in any of the Grounds on which Relief is Sought filed on their behalf, all of which are, I think, identical. I do not accept that it can be brought within paragraph 1(k) which reads:

"The immigration officer failed in the premises to take into account relevant considerations or took into account irrelevant considerations in reaching his decision."

That is to my mind something entirely different.

14. Objection on these lines was taken before the judge below with the observation, we are told, that had this approach been made known in advance to the Respondents the Bundles C and F would have been considerably augmented. It is clear that the judge upheld the objection saying:

"I rule out the general evidence as being admissible simply to show what may or may not have been available to him (i.e. the Immigration Officer) without reference to what was in fact available to him mown to the parties but not yet known to me."

15. The second reason put forward by Mr. Fung is that the evidence will support an attack upon the lines that the decisions were Wednesbury unreasonable, i.e. ground 6 of the Re-amended Notice of Appeal, an approach that the judge below rejected out of hand. he said:

"Further, general evidence of this nature, in an attempt to show that there was a 'Wednesdbury unreasonableness' is certainly not admissible, and no authority for this startling proposition has been advanced. It would be quite wrong in principle in proceedings for a judicial review to allow such evidence."

16. At the close of his judgment in Associated Provincial Picture Houses Ltd. v. Wednesbury. Corporation [1948]  1 KB 223 Lord Greene summarised at p. 233 the relevant principle:

"I do not wish to repeat myself but I will summarize once again the principle applicable. The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although tire local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever nave come to it. In such a case, again, I think the court can interfere.

From that exposition alone 1 ago satisfied that unreasonableness as a factor by itself, what might be termed the second limb in Wednesbury, can only be judged with regard to what was known to the inferior tribunal at the time. Some support for this can be found in the concluding remarks of Lord Russel in Secretary of State for Education and Science v. Tameside Metropolitan Borough [1977] AC 1014 at 1076 and he said:

"I would add this. The question whether the Secretary or State was justified in his conclusion that the proposals of the local authority were unreasonable falls to be decided at the date of his conclusion, June 11: that is common ground. I would not however subscribe to the view that facts subsequently brought forward as then existing can properly be relied upon as snowing that the proposals were not unreasonable unless those facts are of such a character that they can be taken to have been within the knowledge of the department."

17. The English Divisional Court may have taken a different view in Re "H" unreported CO/826/86 31st July 1987. But we understand that in accordance with English practice no objection was taken to the inclusion of further evidence there. I also note that in the United Kingdom there is no particular body of officers nor any tribunal which spends its whole time dealing exclusively with refugees from one particular jurisdiction. This seems to me a significant difference between the two jurisdictions.

18. Mr. Fung contends that the words "Wednesbury unreasonableness" in the grounds of appeal are apt to include what I would term the first limb of Wednesbury, i.e. the tribunal has refused or neglected to take into account matters which it ought to have taken into account. He relies upon the explanation given by Lord Greene at p. 229 of the report:

"For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is wound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'.

19. For my part I do not think the words are normally taken to extend that far. But if indeed that should be the correct interpretation ground 6 is naturally subsumed in the last approach put forward by Mr. Fung. It is this approach which has principally occupied our time in this appeal and is set out in the second paragraph of the first ground of the Notice, namely, that the learned fudge was obliged to admit evidence which demonstrates that the Decision Makers made a material error of fact in determining that the Applicant's professed fear of persecution was not well-founded.

20. This proposition is based upon observations in Tameside, first by Scarman, LJ (as he then was), in the Court of Appeal at p. 1030:

"Secondly, I do not accept that the scope of judicial review is limited quite to the extent suggested by Mr. Bingham. I would add a further situation to those specified by him: misunderstanding or ignorance of an established and relevant fact."

and again by Lord wilberforce at p. 1047 in the House of Lords:

"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"

Further support can be found in the words of Sir Robin Cooke in Daganayasi v. Minister of Immigration [1980] NZLR 131 and in New Zealand Fishing Industry Association Inc. and the Minister of Agricultural and Fisheries [1988] 1 NZLR 544.

21. 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 intoaccount 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 and unassailable to be erroneous". Courts trust in no circumstances allow themselves to be enticed into the evaluation of a fact which is properly within the exclusive jurisdiction of the tribunal.

22. It must also be a material fact as is accepted by the ground of appeal itself. At times the judge below uses, as did Prof. Wade in his 6th Edition of Administrative Law, instead the word "decisive". But I do not read that as intending any meaning different from that usually attributed to the word "material" in this context.

23. I should pause to note at this stage that Mr. Thomas abandoned his Respondents' Notice which suggested that this view of the law was incorrect.

24. With this view in mind the judge below invited submissions as to the particular errors sought to be relied upon. A written submission was handed in with regard to the decisions of the Immigration Officers, a copy of which has been passed to us; and we understand that oral submissions were made with regard to the Board. Having read the evidence de bene esse the judge compared the submissions with the records and concluded that no error or established fact material to the decision making had been demonstrated, at least at that stage.

25. As I have indicated earlier we have peen taken in the course of this appeal through all the relevant material. I have re-read it again in my own time. The written testimony, as one would expect in the circumstances, is presented very differently from much of the official information but overall I find no significant difference or omission. Like the judge I find nothing to indicate that either tae Immigration Officers or the Board were ignorant of any material fact or got any such fact plainly wrong.

26. It is well established that a judge may exclude evidence which can in no way properly advance the claim of the litigant. In that sense it is irrelevant.  In my view the judge was correct so to exercise his discretion in the present instance.

27. Order 53 rule 6(2) provides that:

"The Court may on the hearing of the motion or summons ... allow further affidavits tone used if they deal with new matters arising out of an affidavit of any other party to the application."

It is now apparent that the judge was not entertaining the application below under this provision but under a paragraph of a Summons for Directions which had been adjourned for his consideration. But even had he been so considering the matter, I note that the provision gives no entitlement to the Applicant. It is still a matter of discretion; and for the reasons I have ventured to suggest the discretion would almost inevitably have been decided against the Applicants.

28. The remaining grounds of appeal are either covered by the views I have already expressed or relate to observations of the judge, which whether correct or not, can have no effect upon the conclusion to which I have come. For my part I would therefore dismiss the appeal.

Kempster, J.A.:

29. For the reasons given by my Lord, the Vice President, I agree that this appeal should be dismissed.

Clough, J.A.:

30. I agree.