HCMP002368A/1992
1992, M.P. No.2368
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
MISCELLANEOUS PROCEEDINGS
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IN THE MATTER of an application for leave for Judicial Review pursuant to Order 53 Rule 3 of the Rules of the Supreme Court
AND
IN THE MATTER of LE TU PHUONG 1st Applicant
AND
IN THE MATTER OF DINH THI BICH CHINH 2nd Applicant
AND
IN THE MATTER of a decision by an IMMIGRATION OFFICER, a SENIOR IMMIGRATION OFFICER and a CHIEF IMMIGRATION OFFICER pursuant to Section 13A(1) Immigration Ordinance, Cap.115
AND
IN THE MATTER of a decision by a REFUGEE STATUS REVIEW BOARD pursuant to Section 13F(5) Immigration Ordinance, Cap.115
Coram: Hon. Liu, J. in Court
Dates of hearing:: 27 October 1992, 3 - 6, 9 - 12, 19 - 20, 23 - 24 November 1992, 26, 29 - 31 March 1993, 1, 6 - 8,
Date of delivery of judgment: 23 June 1993
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J U D G M E N T
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1. The applicants are husband and wife asylum-seekers. Their four daughters stay with them in the camp. The applicants' claims for refugee status were rejected in the decision of the Immigration Officer. It was affirmed by the Senior Immigration Officer and the Chief Immigration Officer and finally upheld by the review decision of the Refugee Status Review Board. As against all four determinations, pursuant to leave granted judicial review is now being sought. But the complaints are focused on the Immigration Officer's decision and the review decision of the Board. That asylum-seeker cases are subject to judicial review cannot be doubted. Marion Mamei Gaima v. Secretary of State for the Home Department Lee Bun v. Director of Immigration Nguyen Ho & Others v. Director of Immigration
2. The husband applicant is ethnic Chinese. The wife applicant is ethnic Vietnamese, though her mother was ethnic Chinese. All their four daughters are, needless to say, ethnic Chinese. Nationality of the wife applicant is Vietnamese. Nationality of the husband applicant, as well as the four daughters, was given in the Interview Form also as Vietnamese. The families of both applicants had almost exclusive territorial connections with Thailand, Laos and Vietnam, but not with China, although the husband applicant's grandparents were born in China before their migration to Vietnam, Laos and later Thailand.
3. The husband applicant's father was a government clerk in Thailand and he died in 1959. His widowed mother was running a herbalist business in Thailand. She and her two sons, the husband applicant and Bao, were Vietnamese nationals. In 1963 she took her two sons back to Vietnam. In 1966, Vietnamese nationals were obliged to make a declaration of their personal assets. The husband applicant's mother withheld disclosure of about 20% of her property. In 1967, his mother recommenced her herbalist business in Vietnam. She also embarked on illicit gold transactions with her acquaintances. In 1969, the Vietnamese authority searched her home, valuable items were discovered and confiscated. No penalty was imposed. Thus far, the Immigration Officer's findings coincided with those made by the Board.
4. I shall number the alleged events that followed for easy reference.
(1) According to the husband applicant, in his mother's appeal against the confiscation, she lodged a complaint against the authorities for having under-recorded the valuables forfeited by as much as 60%. The appeal and the complaint were drafted by Bao with the assistance of the Catholic priests. His mother was thereupon investigated by the authorities.
(2) In 1971 when the house of the husband applicant's uncle was searched. Some quantities of gold of his mother's and a letter addressed to her by Father Thong were found. According to the husband applicant, the letter was delivered to his uncle two days ago by a female member of the congregation, warning his mother to be discreet with her customers and keep temporarily away from church.
(3) The husband applicant's mother received a prison term of three years for her "false" accusation against the authorities and her suspected anti-government and reactionary activities, allegedly organised in conjunction with the priests.
5. The Immigration Officer doubted the veracity of the husband applicant regarding these events and formed the view that "the occurrence of the events (did) not seem to be logicial". Also, the Immigration Officer would not accept the delivery of the said letter to the uncle as likely to be by a female member of the congregation because the message could have been passed orally through his brother Bao or handed over directly to the husband applicant or his mother. In any case, his uncle could have re-delivered the letter immediately as he was only 15-20 minutes' bicycle-ride away. After the arrest of the husband applicant's mother, the clergy experienced no trouble from the authorities and the church kept open as usual. That made, so reasoned the Immigration Officer, the husband applicant's "credibility more doubtful".
(4) On 11th September 1972, the husband applicant's brother Bao was arrested. There has since been no news of his condition or release.
(5) A few months later, Father Thong was also arrested, but he was released some 16 years later in 1988.
6. Both the Immigration Officer and the Board found that after the mother's release in 1974, she was given back her house registration (Ho Khau) and that her family led a normal life, being free to move about, practice their religion and earn a living. The reasons for these arrests were not known. However, the Church, the priests and the family were not disturbed by the authorities because of these arrests.
7. Both the Immigration Officer and the Board found that in August 1978, the husband applicant's mother left Hanoi with him for the Chinese border. It is note-worthy that neither the Immigration Officer nor the Board assigned any reason for their departure. The Immigration Officer and the Board simply stated : "During anti-Chinese campaign in 1978, the applicant and his mother left Hanoi for China." It was at least acknowledged that there was then a campaign against Chinese. It seems to have been accepted that on 3rd October 1978 the husband applicant's mother died in the border area. The husband applicant claimed that after her funeral, the Sino-Vietnamese border had closed. It was less than clear whether closure was said to be in October 1978 or whether it was said to have been found closed in October. In his book "The Ethnic Chinese in Vietnam and Sino-Vietnamese Relations", closure on the Chinese side was put by Ramses Amer on 12th July 1978, but a multitude of some 40,000 still made it across after July. In the same book, 160,000 were recorded as having successfully entered China from Vietnam before mid July.
(6) The husband applicant returned to Hanoi in late 1979. According to the husband applicant, on his return he was told by the authorities that he had left Vietnam for China, that he had no right to resume his residence in Vietnam and that his return for residence in Vietnam was unlawful. The husband applicant claimed to have been questioned intermittently by the authority since his return until 1980 when he moved to Long Khanh in the South to hawk soon after his marriage. He stayed in the South for three years. The husband applicant complained that he had never ceased to be regarded by the authorities as a member of a reactionary family, organising anti-government activities with the priests. As from 1983, both Applicants moved with their then three daughters to a hut in La Van Cau, a constantly flooded suburb in Hanoi, where illegal residents were allowed to reside .
8. The Immigration Officer found nothing to indicate that loss of Ho Khau was related to any form of Convention persecution. The Immigration Officer attributed loss of the Ho Khau to the husband applicant's departure from Hanoi in 1978, bringing about incidental hardship and inconvenience. It was concluded that with freedom of movement, of worship and of earning a living on a better than average, income though through hard work, and with private tuition for their daughters, other experiences such as harassment, detention, interrogation were regarded as trivial discrimination "not of such a nature or extent" as would constitude persecution. The Immigration Officer relied also on the credibility gap and general evasiveness.
(7) The husband applicant further disclosed that the authorities suspected him to have spent 78/79 in China and returned as a spy. He was absent from Hanoi in the South for three years between 1980 to 1983 "to avoid trouble". It was said that his questioning resumed after he returned to Hanoi and stayed in La Van Cau in 1983 and that the questioning was centred on whether "he was engaged or involved in anti-government activities with the (priests)".
9. The Immigration Officer doubted these claims in (7) because these allegations, if true, were thought to have the effect of causing serious friction with the authorities and bringing "big trouble" to the Church and his family. The Immigration Officer disbelieved that he could have been "a suspect of (that) category" as "he was only to answer some routine questions". In 1989 when the Sino-Vietnamese border reopened, the husband applicant was making a scouting trip with a view to finding a safe escape route for his family from Vietnam. The Immigration Officer could not understand why he had not seized upon that opportunity to stay away from the alleged peril, particularly when his wife was self-reliant.
10. As to the wife applicant, the Immigration Officer saw "no indication that she and her paternal family had been persecuted in Vietnam for any reason mentioned in the (Convention)".
11. The Immigration Officer doubted the credibility of the husband applicant and found him to be hesitant in giving direct answers and evasive.
12. The Board made, in substance, very similar findings of fact as in (1) and (3) culminating in the imprisonment of the husband applicant's mother. The Board's silence on the mother's suspected activities as a reactionary involving the priests would hardly make any difference, because it accepted that the Security Bureau questioned the husband applicant even as late as April 1990 as to "whether he was engaged in anti-government activities". Just before he finally left Vietnam with his family in July 1990, the husband applicant was, so the Board noted, detained for 4 weeks for his contact with Father Duc. The Board accepted the arrests as stated above in (4) and (5). The Board also accepted the mother's imprisonment as related to her undeclared assets. The Board described the husband applicant's plight on his return to Hanoi in late 1979 as "a desperate situation" without Ho Khau. Not following the Immigration Officer, the Board believed that he was suspected by the authorities, as set out in (7) above, to have "spent the year 78/79 in China and returned as a spy". In order to avoid trouble, he left without his family for Long Khanh in the South three days' train journey away. The board also found the husband applicant to have been frequently interrogated.
13. After a re-interview, the Board made no finding that the husband applicant was lacking in credibility or that he was evasive. What had been submitted for the applicants by Appeals Counsellor of the AVS Refugee Appeals Unit was that there appeared to be no basis for challenging the husband applicant's credibility and that "if the Board (had) doubts as to credibility, he should be re-interviewed".
14. The Board also found that when the Sino-Vietnamese border reopened in late 1989, the husband applicant made his scouting trip for a safe route to leave Vietnam. The Board returned the following additional findings on his other escape attempt and detentions :-
(a) In 1984, the applicants paid 1 1/2 tales of gold for a planned escape which did not materialise;
(b) On his return from his scouting mission to China in 1989, the husband applicant was detained for 15 days and interrogated;
(c) In March 1990, the husband applicant was detained for a night and fined on account of the visit of his three Chinese friends;
(d) In January 1990, on Father Duc's release after a long term of imprisonment, the husband applicant contacted Father Duc. According to the husband applicant, he met Father Duc in church, at his hut and while touring the vicinity of his old family home all with the view to seeking information of his brother Bao. In April 1990, for these contacts, the husband applicant was detained for four weeks.
15. The applicant husband claimed that even in March 1990 he and his family had been minded to make a break for what he described as a free normal life outside Vietnam. The wife applicant was then pregnant with their last daughter. Virtually immediately upon the husband applicant's release following his four weeks' detention for his contacts with Father Duc, the family finally left Vietnam a week after birth of their last child. They travelled by train from Hanoi to Phu Lu and then by car to Lu Cai and then onto China, Yun Nan and Guang Dong. They crossed over to Macau by boat and came to Hong Kong from Macau also by boat, arriving on 27th August 1990.
16. Despite the Board's findings of confiscation, spy suspicion, attempted escapes, detention, interrogation, harassment, which must be significant without the Immigration Officer's adverse assessment on credibility and demeanour, the Board leant heavily on the husband applicant's freedom of movement from North to South during the three years from 1980 to 1983 as well as in his scouting trip to China in 1989. The husband applicant regarded his trips from North to South and South to North as open but "he had fear" of arrest. He also claimed to have to bribe the workers for travelling with them as a member to avoid detection by the police. "He returned to Hanoi secretly". He explained how he hid in a friend's home in Hanoi to meet his wife and how he stayed only briefly and had to move secretly to avoid discovery. There is no indication in the Board's reasons that any of these assertions had been properly disposed of. The Board also relied on the wife's hawker licence and the family's substantially higher income. The Board attached importance to an answer of the husband applicant that "he too earned his living by selling cooked food". However, the husband applicant described the limit of assistance allowed in his wife's hawking establishment and the constant intervention by the authorities. The Board concluded that it was "unable to see (the husband applicant's) life in Vietnam was intolerable which would give rise to a well-founded fear of persecution". The husband applicant's attempted escapes, arrests, detention, interrogations, harassment, including his suspicion of being a spy for China and his Church association were simply discarded by the Board as "insufficient evidence" for establishing "a well-founded fear of persecution in Convention terms". It is a sweeping statement without analysing the issues or evaluating the evidence on the issues. After a recital of the facts accepted, the Board concluded that they were insufficient evidence. That cannot be a proper evaluation.
17. The Board's concluding paragraph does not even relate closely to its opening paragraph under the rubric "Decision and Reasons". The opening paragraph was taken from the submission of the Appeals Counsellor of the Refugee Appeals Unit in Agency For Volunteer Service (AVS): "The applicant bases his claim to refugee status for reasons of his nationality, or in the alternative, the cumulative effect of ethnicity, imputed political opinion and religion."
18. The concluding statement of the Board reads :-
"There was insufficient evidence laid before the Board to justify the Board finding in the light of such evidence any well founded fear of persecution by reason of race, religion, nationality. membership of any particular social group or political opinion ... , nor was that any sufficient evidence before the Board which enabled it to find a doubt the benefit of which could be exercised in the Applicant's favour." [The words underlined are derived from paragraph 51 of the Handbook on Procedures and Criteria for Determining Refugee Status from the office of the United Nations High Commissioner for Refugee (UNHCR). See also Article 1A(2) of the 1951 Convention Relating to the Status of Refugees.] (Underlining mine).
19. Hong Kong has had a refugee problem since 1975. Hong Kong is consequently much troubled by asylum-seekers' applications. It is accepted as correct, on all hands, the succinct summary of Mortimer, J. in R. v. The Director of Immigration and The Refugee Status Review Board, Ex parte Do Giau and Others Do Giau, this is an "agreed policy" formulated for Hong Kong to be carried out "within a legislative framework". However, administrative law requirements should not be introduced to supplement it unless the procedure this framework prescribes is clearly insufficient to achieve justice and unless the added "steps would not frustrate the apparent purpose of the legislation". Wiseman v. Borneman Llovd v. McMahon Lau Tak-pui & Others v. Immigration Tribunal
20. Each Vietnamese claimant may be permitted by our Immigration Department "to remain in Hong Kong as a refugee pending his resettlement elsewhere". See Section 13A(1) Immigration Ordinance. That is precisely how a "Vietnamese refugee" is defined in our s.2. Pending a decision to be made on their claimed refugee status, they may be detained and their detention is sanctioned by law. See s.13D. Determination of their claimed refugee status, the screening, is regulated by our regime. Whatever the status of these Vietnamese people is, such a regime would be applied.
21. This view is well supported by the warning notice given by the Hong Kong Government on first contact. The difference in the message conveyed in the warning notice used as from June 1988 is telling. Except for a period between June 1988 and mid September 1988, the Vietnamese people have not been told that they would be treated as illegal immigrants. The warning notice for 1982 read :-
"All former residents of Vietnam seeking to enter Hong Kong since 2nd July 1982 are detained in special centres.
If you do not leave Hong Kong now, you will be taken to a closed centre and detained there indefinitely. You will not be permitted to leave detention during the time you remain in Hong Kong. It is extremely unlikely that any opportunity for resettlement will be forthcoming.
You are free to leave Hong Kong now, and if you choose to continue your journey you will be given assistance to do so."
As from 16th June 1988 a new form of warning notice was used for all new arrivals :-
"There is a new policy in force in Hong Kong.
Former residents of Vietnam seeking to enter Hong Kong are now treated as illegal immigrants on arrival.
You are free to leave Hong Kong. If you choose to continue your journey you will be given food and water and, if necessary, your boat will be repaired.
If you do not leave Hong Kong you will be detained as an illegal immigrant pending repatriation to Vietnam." (Emphasis added)
22. In mid September 1988, the Warning Notice was replaced by a Notice on Arrival :-
"Notice on Arrival
Former residents of Vietnam seeking to enter Hong Kong are now subject to a process to decide whether or not they are refugees under as defined in the 1951 United Nations Convention Relating to the Status of Refugees.
Those found not to be refugees will be treated as illegal immigrants . As an illegal immigrant you will be detained pending repatriation to Vietnam.
However, you are free to leave Hong Kong if you choose to continue your journey, you will be given food, water, and if necessary your boat will be repaired." (Emphasis added)
23. As from early 1989, a Warning Notice was brought back into use again:-
"There is a new policy in Hong Kong. Former residents of Vietnam seeking to enter Hong Kong as economic migrants are now treated as illegal immigrants.
You are free to leave Hong Kong. If you choose to continue your journey you will be given food and water and, if necessary, your boat will be repaired. If you do not leave Hong Kong and are founded to be an economic migrant, you will be detained as an illegal immigrant pending repatriation to Vietnam." (Emphasis added)
In August 1989, a modified version was introduced :- "Illegal immigrants are not welcome in Hong Kong and there is no future in Hong Kong for them.
If you choose to remain you will be subject to a screening procedure to determine whether you have a genuine claim for refugee status. You will be placed in a detention centre until this procedure is carried out. You will not be permitted to leave the detention centre and will not be allowed to take outside employment.
If following the screening procedure it is decided that you are an economic migrant, and therefore an illegal immigrant , you will remain in detention pending repatriation to Vietnam. The majority of persons screened have been found to be economic migrants.
You are free to leave Hong Kong only if you do so immediately, or else you will be detained and treated in accordance with the above." (Emphasis added)
That is the notice which affects the applicants in this case.
24. Since February 1993, a new format has been used. In substance, it is similar and it is in these terms :-
"Illegal immigrants are not welcome in Hong Kong and there is no future in Hong Kong for them.
If you choose to remain, you will be subject to a screening procedure in the next few days to determine whether you have a genuine claim for refugee status. You will be placed temporarily in a detention centre while you are awaiting the outcome of the screening. You will not be permitted to leave the detention centre or to take outside employment.
If following the screening procedure it is decided that you are not a refugee, and therefore an illegal immigrant , you will be promptly repatriated to Vietnam. The great majority of persons screened have been found not to be refugees.
You are free to leave Hong Kong only if you do so immediately, or else you will be detained and treated in accordance with the above. If you choose to remain, you must surrender immediately all arms, ammunition, explosives, weapons or drugs, or face possible prosecution." (Emphasis added)
25. The message has, since mid September 1988, been that if a claim for refugee status is made, the arrival will not be treated as an illegal immigrant until after screening. There clearly exists a legitimate expectation in every arrival not to be treated as an illegal immigrant for and in the screening procedure. What really matters is not what the arrivals are but how they would be, if refugee status is claimed, treated in the process.
26. As recounted by Mortimer, J., the new procedure for determining refugee status in Hong Kong was established only in September 1988 under a Statement of Understanding (S.O.U.) with the UNHCR. After further consultations, the procedure was revised.
27. In essentce, what is, to a varying degree, involved are :-
(a) the 1951 Convention and the 1967 Protocol;
(b) the UNHCR Hand Book;
(c) the Immigration Department's Guidance Notes containing a summary of criteria and procedure to be applied;
(d) the detailed information about Country Conditions in Vietnam;
(e) the agreed questionnaire.
28. In these materials are found the guidelines and criteria for determining refugee status under our screening procedure.
29. The usual procedure, as described by Mortimer, J., is that the Immigration Officer, inter alia, "makes his decision ... and records his reasons". On the force of Regulation 7(a) of the Immigration (Refugee Status Review Boards) (Procedure) Regulations, which provides for "reasons for (the) determination" to be made available for inspection by the representative of an pplicant, I share the view expressed by Mortimer, J. that the Immigration Officer "is also required by inference to give reasons".
30. The recommended procedure does not contain any provision for read back in an interview by the Immigration Officer in screening or the Board on review. The risks of error in double interpretation involving an Immigration Officer's own silent translation into a foreign language are considerable. Recording the proceedings by a judicial officer and the police from Chinese dialects into English is not uncommon in Hong Kong. Except for judicial officers, read back is eminently desirable for the satisfactory discharge of a duty of this nature. Read back was staunchly supported by Mortimer, J. as fairness in action to, inter alia, avoid inaccuracies, omissions and/or deficiencies for as well the interviewer as the interviewee.
31. English Judges had been highly critical of the absence of read back in asylum cases. Read back is now an accepted practice in England. There is no intermediate review in the United Kingdom, and their statutory framework is dissimilar. The UNHCR would also provide no monitoring. I do not find it necessary to have to rehearse the discourse on read back given in the English cases. The need for read back was drawn attention to by Mortimer,J. Mr Darwyne, counsel for the applicants, submitted an English Asylum Interview Record (Form IS.97A) obtained from Messrs. Winstanley-Burgess, solicitors in R. v. Secretary For the Home Department ex parte Terance Stephen Range
"It has been explained to me that the purpose of this interview has been to enable me to explain why I wish to claim political asylum. I have understood the questions put to me and have had an opportunity to tell the interviewing officer about any other facts which I think are relevant. I have read/had read to me pages 1 ' ...... (including this one) which have been made by the interviewing officer and have been able to add or correct anything I want. The interviewing officer's notes, as amended by me, give an accurate account of what I have said and of my circumstances.' "
32. The guidelines for the interviewer in the UNHCR Hand Book were neatly summarised by Mr Darwyne.
"Paragraph 205:
1. The applicant puts the facts of his case.
2. The applicant provides evidence in support.
3. The applicant explains lack of evidence.
4. The applicant makes effort to procure additional evidence.
5. The applicant supplies all pertinent information.
6. The applicant explains reasons invoked in support of his claim.
7. The applicant answers questions.
8. The examiner ensures that the above happens.
9. The examiner assesses credibility.
10. The examiner evaluates evidence.
11. The examiner gives benefit of the doubt if necessary.
12. The examiner follows the guidelines for him with reference to relevant Convention criteria in his deliberation.
Paragraphs 196 & 199:
13. The examiner and applicant share the duty to ascertain facts, including the need for the examiner to evaluate facts, to clarify apparent inconsistencies and to resolve any contradictions in a further interview.
14. The examiner may have to find explanations for misrepresentation or concealment of material facts.
Paragraph 66:
15. The applicant may not know the reasons for the persecution and need not identify reasons in detail.
Paragraph 67:
16. The examiner should ascertain the reasons for the persecution feared for deciding whether the Convention definition is met.
Paragraph 42:
17. Knowledge of County Conditions is an important element in assessing the applicant's credibility."
33. The essence is : (a) the interviewee must tell all he knows; (b) the interviewee is often unable to and need not identify the Convention reasons in describing his experiences and fears of persecution (paragraph 46); (c) the interviewer must help him to tell all he knows, giving his account (if credible) the benefit of the doubt; (d) if the interviewee happens not to know or be able to give the Convention reasons for the persecution feared, the interviewer should scan his case for ascertaining the relevant Convention reasons; (e) Country Conditions may assist in assessing credibility; (f) the interviewer applies the guidelines applicable to him in arriving at his decision. These guidelines for fact-finding are not meant to be exhaustive. (Paragraph 200).
34. In asylum cases, the courts must undergo "a more vigorous examination" and "the basis of the decision must surely call for the most anxious scrutiny". R. v. Home Secretary, ex parte Bugdacay, Marion Mamei Gaima v. Secretary of State for the Home Department Secretary of State for the Home Department v. Sittampalam Thirukumar & Others R. v. Secretary of State For the Home Department ex parte Terence Stephen Range , supra., p.517 per Henry, J.). Moreover, it should be "wholly fair throughout". See Gaima , supra. at p.209 per May L.J.
35. In R. v. Secretary for the Home Department, Ex parte Brind & Others, neither of those senses In Council of Civil Service Unions v. Minister for the Civil Services [1985] A.C.347, 410 Lord Diplock, ... used irrationality as a synonym of Wednesbury unreasonableness", in the sense of "a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it". (Emphasis supplied). I hope I have succeeded in demonstrating by close reference to passages in the speech of Lord Ackner that only one of the Wednesbury grounds, the Wednesbury unreasonableness, is portrayed by Lord Diplock's "irrationality".
36. Judicial review grounds are, as are critcisms mounted on the Wednesbury principles, almost impossible to be put into water-tight compartments. Administrative law complaints cannot be segregated "cleanly" from one another "since the courts may use a variety of inter-changeable explanations". Wade, supra. p.411. Therefore, there does not seem to be any warrant for neatly severing the Wednesbury principles in two or more distinct limbs. Lord Greene sounded a warning note in Wednesbury : "all these things run into one another". Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation , [1948] 1 KB 223, p.229. In the case of Du Gui Fang, M.P. No.3079 of 1992 (2nd February 1993), I endeavoured to focus largely on fairness in action, suggesting, in effect, that Lord Diplock's classifications of illegality, irrationality and procedural impropriety should best be used as analytical aids. These areas themselves often overlap.
37. After all, for an immigration officer, it is
"a question ... of being required to act fairly. Good administration and an honest or bona fide decision must ... require not merely impartiality, nor merely bringing one's mind to bear on the problem, but acting fairly; and to the limited extent that the circumstances of any particular case allow, and within the legislative framework under which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is merely a duty to act fairly."
Re H K (Infant) , [1967] 1 QB 617, p.630 C, per Lord Parker, C.J.
38. The arrangement and understanding reached with the UNHCR, the Ordinance and Regulations, the approved procedure including the agreed Questionnaire do not prescribe read back. The Immigration Officer is expected to follow the Questionnaire which is designed to adequately and fairly elicit the relevant information. A measure of monitoring is provided by the UNHCR. The Immigration Officer is also assisted by the Guidance Notes. Too much room for making grave errors is not to be expected. The Board hears, for reasons which will emerge in a moment, the review de novo. Any shortfalls in the earlier interviews would likely be corrected before the Board, particularly with the intervening assistance of AVS Appeals Counsellor's written submissions. Finally, all the interview notes with reasons are supplied to the UNHCR on an application to him to exercise his power of mandate. The asylum-seeker will be entitled to, at that stage, make further submissions. In refugee problems which have little direct bearing on the interests of the community, the constraints in time, costs and resources deserve the most concerned consideration. In a framework calculated to carefully elucidate facts and sieve inaccuracies, can read back be said, in balancing the competing interests, to be wanting?
39. Mortimer, J. acknowledged read back as not being "a feature of the recommended procedure" (p.296 line 28 Do Giau supra.) in a "framework of statute and policy" (p.308 lines 34-36) elaborately set out in his judgment. Insofar as the decision in Do Giau required read back, it was clearly decided after having paid due regard to the Hong Kong regime.
40. We know not why read back is not specifically featured in the framework. Not every conceivable aspect of fairness in action has been categorically laid down for the guidance of the Immigration Officer or the Board. Indeed "an examination in depth of the different methods of fact-finding is outside the scope of the Hand Book" (Para.200), but a step as important as read back is expected to deserve, if required, a mention. Lack of reference to read back may be thus interpreted as a deliberate attempted dispensation.
41. On the other hand, credibility has always a prominent role to play in screening and the review. Great care is demanded of the authorities whose decisions in these cases call for the most vigilant scrutiny by the courts invested with a special responsibility for ensuring utmost fairness. The asylum-seeker must be afforded every opportunity to eradicate any wrong or unfair impression and he must be allowed to give a full and precise version, particularly when much, if not all, of the information in the departmental file and what is regarded as pertinent Country Conditions may be unilaterally looked at without notice or disclosure to him. The Immigration Officer and the Board do not enjoy the advantage of direct legal assistance, and their tasks are decidedly more onerous than that of a police officer taking a statement. The content of the information obtained in a genuine asylum case is inevitably grave and far-reaching. Means of rectifying deficiencies provided at a later date can never be the same as the contemporaneous opportunity given by a read back. With issues of such gravity as those in an asylum-seeker case, the special responsibility of the courts to vigorously examine the case with "the highest standard of fairness" must be meaningless or eroded without the safeguard as fundamental as that of read back. In any case, a less stringent interview procedure would not likely produce the fairness to withstand the closest scrutiny in judicial review. Read back would also be infinitely conducive to a more effective discharge of the onerous task of determining credibility by all, including an administrative or executive tribunal. Subject perhaps to a Bill of Rights challenge for a fair hearing (Article 10) and possibly a contended exception to it after balancing the interests of the individuals and society, it would be open to the Hong Kong Government to eliminate such a crucial procedural protection by legislation. It is ungainly to attempt to achieve the same end by defending the current asylum practice. In a matter of such great importance, I cannot be guilty of being mesmerised by the "majestic conceptions of natural justice".
42. That the UNHCR has been instrumental in the resurrection of read back in Hong Kong is denied. Read back is nevertheless practised in a similar exercise undertaken by the Phillipines and, to the extent of the main points, Malaysia. It was sought to be argued that their situation was much less acute. The Court was not told that the more substantial undertaking would be beyond Hong Kong's means or resources. Unlike Malaysia and the Philippines, we pride ourselves to be one of the four dragons in The Orient. Upon their arrival, the applicants were specifically told that they would be treated as asylum-seekers pending the determination of their claimed status. Upon being read the Warning Notice, they had at least a legitimate right to expect procedural fairness in their screening according to our set practice. Our law requires it to be of the highest standard and wholly fair throughout. Whatever status or other status may rguably be attributable to their presence in this territory, their legitimate expectation must be honoured.
43. The asylum-seekers were never warned that our system would not provide the usual safeguard of read back. Were they entitled to expect read back? Could their full legitimation expectation be somewhat diluted? Would the principle of Wiseman v. Borneman , supra . be displaced by such a legitimate expectation? This line of approach was not taken by counsel for the applicants, and this area shall have to be deferred for consideration at another time. However, these applicants could certainly not be treated as illegal immigrants in the screening process.
44. What ultimately falls to be decided is: Can justice be achieved without read back in these claims of gravity? The answer must be a resounding "No". Our procedure without read back before Do Giau was insufficient to ensure attainment of the highest standard of fairness.
45. If there is a case of material issues having been overlooked or otherwise rendered susceptible to judicial review, these applicants would be, in terms of a real or reasonable likelihood, prejudiced because they had been deprived of the benefit of read back and thus unfairly treated both before the Immigration Officer and the Board. R. v. Home Secretary, ex parte Sivakumaran , [1988] 1 A.C. 958, p.994 F/G. It should be noted, in passing, that despite making some findings of its own, the Board leant heavily on the efforts of the Immigration Officer.
46. The very fact that the Board differed significantly in its findings from the facts accepted by the Immigration Officer raises serious concern as to whether on read back, the applicants, particularly the husband applicant, could have offered further evidence to make the Immigration Officer more receptive to his assertions. What is more telling in favour of read back is that the Board was content not to make adverse findings on credibility and demeanour. Would the Immigration Officer have gained a better impression if the applicants had had the benefit of read back? In the same vein, would the husband applicant have been able to make himself even more favourably received by the Board? Capital was sought to be made of the varying versions relating to the mother's willing departure, incidents before and after the 1978 departure from Hanoi e.g. delivery of Father Thong's letter, the number losing Ho Khau, the impact of absence of "big trouble", the freedom of movement and earning a living, discrimination of a minor nature, or tolerable life-style, and other aspects said to have been poorly reflected by the Country Conditions. I have commented on these findings and the Board's general concluding statement. The applicants were also accused of escalating their allegations. In my view, there is a real likelihood of further or more modification, elaboration and explanation with the benefit of read back. The loss of the advantages of instantaneous read back could not be, as I have been at pains to point out, truly compensated by the subsequent opportunities to supplement the asylum claims via the AVS Appeals Counsellor, at the Board's interview and in the application for the exercise of the UNHCR's power of mandate. For the reasons I shall give later in this judgment, the issues of Race, Loss of Nationality and Imputed Polical Opinion were not considered by the Immigration Officer or the Board. Each of them is a separate claim based on an alleged well-founded fear of persecution by reason of a Convention reason. There was every reasonable degree of likelihood, given the benefit of read back, that some or all of these overlooked issues could have been clearly or better identified for an initial first deliberation by the Immigration Officer and/or elaborated by the husband applicant at the Board interview. The Senior Immigration Officer and the Chief Immigration Officer embraced the original findings. Some of the ground evidence of the Immigration Officer was adopted by the Board. On these matters alone, I would accede to the relief in terms of the orders sought in paragraphs 1, 2, 4 and 6 of the Notice of Application.
47. In deference to the efforts made by counsel, I shall proceed to consider the other debated issues.
48. The term "refugee" includes a person who "as a result of events occuring before 1 January 1951 and owing to 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, or who, not having a nationality and being outside the country of his formal habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it". Article 1A(2) of the 1951 Convention. The phrase "well-founded fear of being persecuted" is explained in the Hand Book, paragraphs 37, 38, 41 and 42 : see also paragraphs 40, 43-45 and 126 and paragraph (ii), (iv) and (v) of the Preface.
49. The Immigration Officer is evidently entitled to resort to other information of probative value, including that in the departmental file and other reports. Lord Goff approved the view expressed by the English Court of Appeal for "well-founded fear" in the judgment of Sir John Donaldson M.R. as "(a) actual fear, and (b) good reason for that fear, looking at the situation from the point of view of a person of reasonable courage circumstanced as was the applicant for refugee status". See R. v. Home Secretary, ex parte Sivakumaran , supra . at p.997 G. The enquiry to be made of an applicant for asylum status is "whether the subjective fear of the applicant is objectively justified." Sivakumaran , supra . p.1000E, per Lord Goff. "The question is what might happen if he were to return to the country of his nationality (or his former habitual residence). His fear that he might be persecuted there. Whether that might happen can only be determined by examining the actual states of affairs in that country. If that examination shows that persecution might indeed take place then the fear is well-founded. Otherwise it is not." Sivakumaran, supra. p.993 E per Lord Keith. Therefore, the Immigration Officer must objectively examine the subjective fear of an applicant, in the light of any new circumstances in the Country Conditions prevailing at the time of the examination. Sivakumaran , supra . page 992 H & page 1000 C per Lord Keith.
50. As I have said, an Immigration Officer is also entitled to look at information of probative value in the relevant departmental files. Having access to these files would not foreclose judicial review challenges. The contrary is certainly not the law, nor remotely supported, as it was contended by Mr Marshall, by the decision in R. v. Secretary of State for the Home Department, Ex parte H. Bolat
"The material was there on the file before him. That the file was considered in some detail is clear both from the decision letter and from the affidavit. There is nothing in the reasons set forward that raises, in my mind, doubts as to whether the Secretary of State had taken these matters into account. They were there before him to be taken into account. The decision letter is quite consistent with them having been taken into account. It would have been surprising had they not been taken account and there are adequate reasons in the decision letter."
Bolat is distinguishable on its own special facts. It was not stated in the decision letter at all that the Secretary of State had taken into account the relevant material. What was, in substance, submitted by counsel for the Crown and accepted by Henry, J. is that the file containing the questioned material was before the Secretary of State, that the file was considered in detail by him, that the reasons given in the decision letter were adequate, that the decision letter was consistent with those matters having been taken into consideration and that nothing in the reasons given cast any doubt that those matters might not have been taken into account. Cumulatively, the court was driven to the inference that due regard must have been paid to the questioned material. Mere access to a file containing all the relevant information of probative value would not bar judicial review.
51. The duties and powers of the Immigration Officer and the Board and the screening and review procedures are matters primarily of statutory interpretation. The Immigration Officer is well guided, particularly by the agreed questionnaire. I have attempted to set out fully his duties at the interview. The decision of the Immigration Officer may be taken to the Board on review under s.13F of the Immigration Ordinance. Under s.13F(7), the Board acts in an administrative or executive capacity in considering a review, and under subsection (8) the Board is not required to assign any reason for its decision. The decision shall not be subject to review or appeal in any court. However, if for any reasons the Board failed, in effect, to exercise its power to review (e.g. applying the wrong test by paying attention to irrelevant considerations or paying no regard to relevant considerations; acting purportedly in compliance with one section but in truth under a different section), or to conduct a full or balanced review (e.g. failing to address some of the issues) or to return a decision as required by the section (e.g. ignoring the statutory criteria or purpose; reaching a conclusion which no reasonable tribunal, properly directed itself in law, could have reached), its determination may be then reviewable. Mr Marshall, counsel for the respondents reserved his position but refrained from making any counter- submissions on that question before me.
52. The Review Board procedure is governed by the Immigration (Refugee Status Review Boards) (Procedure) Regulations. Under s.13F(3), an asylum-seeker, in the preparation of his case for review, would have the assistance of a legal representative, either his own legal representative or a prescribed person in the capacity of an Appeals Counsellor sponsored by AVS as defined in Reg.2. Under Reg.7(a), papers to be made available to his representative should include "reasons for (the Immigration Officer's) determination". Under Reg.7(a), the Immigration Officer has therefore, by inference, to provide reasons for his decision. It stands to reason that "before a course of action is taken against an individual which he contends could endanger his life, he (should be) told why the action is being taken. Short reasons are given when a person is refused entry as a visitor so how can it be right to give no reasons when a person is refused asylum?" R. v. Secretary of State for the Home Department, Ex parte Singh, et al.
53. The Board is not required to assign any reason for its decision. A tribunal which is specifically required to give reason or is exercising a judicial function, particularly from which there is to be no appeal, ought to provide reasons. In Lloyd v. McMahon , supra ., at p.p.702-703, Lord Bridge expounded on the underlying concept of fairness whereby reasons may be required by the rules of justice to be given :-
"My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and its statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on any body power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness."
In our statutory framework, the Board need not give reasons. It is not a judicial body. It functions in an administrative or executive capacity. A further means of removing errors is provided by an agreement reached between the Hong Kong Government and the UNHCR, whereby the UNHCR may request for an asylum- seeker to be mandated in as a refugee. On the rejection by the Board, these applicants did so apply to the UNHCR to exercise his power of mandate. The procedure for the exercise of the agreed power of mandate is such, so the Court was told, that the UNHCR would receive copies of the interview notes and the reasons for the decisions together with all other relevant papers. The asylum- seeker is entitled to make further submissions, as the husband applicant did in this case, before a decision is taken by the UNHCR. In my view, bearing in mind the principles in Wilson v. Borneman Lloyd v. McMahon
54. Both the Immigration Officer and the Board did however give reasons. Once given, the reasons ought to measure up to the standard of our administrative law principles. Hutchison J. was quoted as having said in R. v. Criminal Injuries Compensation Board, ex parte Cummins
"Even in a case where there was no obligation to give reasons, his Lordship would assume that a body which in fact gave reason was obliged to do so in a way which met the requirements of adequacy which the law imposed in cases where the duty to give reasons existed."
55. In Robert Lee Flickinger v. Director of Immigration
"We have always understood the law to be that, even where no reasons are required, once they are given they may be reviewed by the court. We do not seem to be alone in this opinion: see R. v. Immigration Appeal Tribunal, ex parte Bastiampillai [1983] 2 All ER 844 at p.852 b j; de Smith Judicial Review of Administrative Law (4th edition) at p. 148."
56. Reasons have now been given by both the Immigration Officer and the Board. The given reasons are expected to set out the issues and the evidential basis for their determinations. See R. v. Immigration Appeal Tribunal, Ex parte Khan (Mahmud)
"Where one gets a decision of a tribunal which either fails to set out the issues which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis upon which they have reached their determination upon that issue, then that is a matter which would be very closely regarded by this Court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason is this. The party appearing before a tribunal is entitled to know, either expressly stated by the tribunal or inferentially stated, what it is to which a tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Secondly, the appellant is entitled to know the basis of fact upon which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in other cases it may not."
In Alexanda Machinery (Dudley) Limited v. Crabtree
"A finding of fact or refusal to find a fact will involve an error of law if the finding or refusal is a conclusion which no tribunal, properly directing itself, could reach on the basis of the evidence which has been given and accepted by it. I stress the word 'accepted' because it is important that tribunals, in reaching findings of fact, should set out in substance what evidence they do or do not accept."
Schiemann J. was more explicit in R. v. Immigration Appeal Tribunal ex parte Mohd Amin , [1992] Imm AR 367 at p.374 :-
"In my judgment adjudicator should indicate with some clarity in their decisions:
(1) what evidence they accept;
(2) what evidence they reject;
(3) whether there is any evidence as to which they cannot make up their mind whether or not they accept it;
(4) what, if any, evidence they regard as irrelevant."
57. That is a counsel of perfection. But an Immigration Officer should at least state plainly the issues and briefly the evidential basis on which his decision is made. These matters may be obvious or covered by inference. But it would be unwise for him to leave these to be inferentially expressed for a court to hopefully capture them later in time. When reasons are given, "one must somehow be able to read from the reasons the issue to which the reasons are directed" if only to satisfy the person affected that the decision-maker had grabbled with it. R. v. Mental Health Review Tribunal, Ex parte Pickering , [1986] 1 All ER 99 at p.104 a and e. The reasons need not be elaborate, and they are naturally "not to be construed like a statute". French Kier Developments Ltd. v. Secretary of State for the Environment & another, [1977] 1 All ER 296, at p.304 b per Willis J. But the reasons must not be so vague, inadequate and unintelligible as to cloud the issues and the evidential bases. French Kier Developments Limited v. Secretary of State for the Environment and anr ., supra. at p.304 d per Willis, J.; Westminster City Council v. Great Portland Estates Plc. , [1985] 1 A.C. 661, at p.673 D per Lord Scarman.
58. Of the four issues identified by the AVS Appeals Counsellor, namely Race, Loss of Nationality, Imputed Political Opinion and Religion, only the first three were complained to have been overlooked by the Immigration Officer and the Board. It would include, of course, the Senior Immigration Officer and the Chief Immigration Officer.
59. As to the issue of Race, the evidence was that the husband applicant's mother was summoned by the authorities with the message that her family could either go to China or down south. She was often so persuaded but she was still unwilling to leave. According to the husband applicant, the authority became "more distrustful and (assumed) a stronger attitude". They were approached and urged to make a decision. Later, the authorities were becoming more oppressive. The situation became eventually worse, and many ethnic Chinese left. The Security Officers' persuasion proved at last to be effective. The husband applicant's mother left with him "reluctantly" for China. The allegation was that she was in truth asked by the authority to leave. In effect, she claimed to have been expelled. Accordingly to Mr Marshall, their departure was motivated by their fear of an imminent war, and in fact the Vietnam Government was keen to stamp out the outflow. It was submitted that part of the Country Conditions related the treatment of ethnic Chinese to deteriorating international relation. The court was told by counsel that the husband applicant's mother had in the past attempted to leave Vietnam, both in 1963 and 1970. The husband applicant did at one time comment that his mother was "very willing" to leave but his answer must be read in its proper context that his mother was reluctantly to leave without Bao who had not been released from prison and of whom the family had still no news. They had no substantial connection with China. More probable than not, in the end the mother must have been only too pleased to make a move. According to the husband applicant, his mother and he finally left in August. Mr Marshall took a further point that in the Country Conditions, the Chinese border was said to have been closed since July. But many ethnic Chinese, some 40,000 still managed to make their way across after July.
60. The Immigration Officer disbelieved the husband applicant. His allegation of expulsion by reason of race was primarily sought by counsel to be supported by the alleged attitude of and measures taken by the authorities, the family's false reputation as a reactionary one, the developing arms conflict between China backing Kampuchea and North Vietnam through 1979 to the mid 80's, China's condemnation (refuted by Vietnam) of large scale expulsion, exodus of ethnic Chinese including the semi-legal departure, the expulsion claim made by some ethnic Chinese reaching Hong Kong, and the open affirmation of ethnic Chinese suspected as the fifth column after the 1979 Chinese incursion. The issue of Race was clearly on the cards. But all the Immigration Officer found was: "During the anti-Chinese campaign in 1978, Mr Le and his mother left Hanoi for China". What is it, in this short sentence, to which the Immigration Officer was addressing his mind? A little lower down on the same page, the Immigration Officer concluded: "From the account given by (the husband applicant), there is no indication that the reasons for not granting them proper census papers are relating to any Convention reasons in the definition." Race is a Convention reason, but Ho Khau was a right allegedly lost on the husband applicant's return in late 1979. Moreover, the claimed expulsion by reason of Race was earlier in point of time in 1978. It is apparent from what the Immigration Officer stated by way of reasons that he had not considered expulsion or expulsion by reason of Race. Obviously, he could not have attempted to and did not indicate what the expulsion evidence was. I cannot see how these vague sentences could reasonably be understood to say that expulsion by reason of Race had been determined and rejected. The Board on review repeated the same sentence : "During anit-Chinese campaign in 1978, the applicant and mother left Hanoi for China." I need not go over again what I have just said for the same conclusion.
"Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution". See para.68 Hand Book . It is all the more disturbing that I am unable to detect from the reasons given both by the Immigration Officer and the Board whether what was there being said was directed to the Race issue. Race may occasionally overlap with Loss of Nationality. See para.74 Hand Book .
61. For Loss of Nationality, the applicants' assertions are, in the main, that the husband applicant was treated as a non-citizen, as an illegal resident and through the AVS Appeals Counsel as an illegal immigrant, that he had no vote, that he was not required to provide compulsory labour, that his identity card was taken from him, that only the wife applicant was able to obtain a hawker licence, that save for rendering limited assistance to his wife, he was unable to work, that he received no subsidies, that he could not obtain a marriage certificate or birth registrations for his daughters who were deprived of public schooling facilities, that he was detained, harassed and often interrogated, that he was accused of being a spy for the Church and for China, etc. It is patently clear that persecution for any Convention reason could and allegedly did bring about a variety of repercussions, including loss of Ho Khau. Other ill treatments were alleged by the applicants in this issue. A finding by the Immigration Officer that loss of Ho Khau was not attributable to persecution would not dispose of these other ill treatments and could not therefore totally exclude persecution itself.
62. It was the applicant's case that because of Loss of Nationality, arbitrarily taken away from the husband applicant, his forfeited Ho Khau was not restored to him despite his many applications made up to 1983. It was conceded by the respondents that Loss of Nationality was inferentially raised for the applicants before the Immigration Officer. On that concession, the Vietnamese nationality as recorded in the Interview Forms loses much of its significance. Mr Marshall submitted that the Immigration Officer inferentially rejected it in these terms : "From the account given by (the husband applicant), there is no indication that the reason for not granting them proper census papers are related to any of the Convention reasons in the definition". It is fair to say that the Immigration Officer assumed some ill treatments as incidents necessarily arising from loss of Ho Khau and rejected the remainder on account of lack of credibility. However this brief conclusion with reference to Ho Khau could not have, as Mr Marshall argued, inferentially dealt with the issue of Loss of Nationality. Not only are the reasons of the Immigration Officer laconic and impertinent, no amount of benevolent paraphrasing of them would provide any clear indication that he had addressed Loss of Nationality. Needless to say, the Immigration Officer could not have even begun to set out the basis of fact.
63. Before the Board, Loss of Nationality was expressly raised by the Appeals Counsellor. The Board made a fleeting reference to it at the beginning of its decision and in its concluding statement :-
"The applicant bases his claim to refugee status for reasons of his nationality, or in alternative, the culminative effect epthnicity, imputed political opinion and religion."
"There were insufficient evidence laid before the Board to justify the Board finding in the light of such evidence any well-founded fear of persecution by reason of race, religion, nationality, member ship of any particular social group or political opinion on the part of the applicant which would justify any reversal of the decision of the Director of Immigration in this case."
"Nationality" was lifted from the Appeals Counsellor's submission and presumably paragraph 51 of the Hand Book. No one reading these passages could reasonably be satisfied that Loss of Nationality had been considered as an issue by the Board. Nowhere can the evidential basis for Loss of Nationality be gleaned from the reasons given by the Board. Clearly Loss of Nationality was overlooked.
64. Finally I pass on to Imputed Political Opinion. The husband applicant's family was regarded as reactionary. His mother was said to have been accused of "organizing anti-government activities with the fathers in the Church". The husband applicant himself was similarly questioned. The Immigration Officer doubted his credibility on this claim. The Board was silent on this part of the family past history, but the Board must have recognised a likely connection when it accepted the Security Bureau's interrogation of the husband applicant in as late as April 1990 as to "whether he was engaged in anti- government activities". The husband applicant's brother Bao was found by both the Immigration Officer and the Board to have been arrested by the authorities for reasons unknown. The Immigration Officer did not believe the husband applicant to have been suspected as a spy but the Board did. The Board found him to be "frequently" questioned by the authorities. The Board also found that he was "regularly questioned on his relationship with the local priest". The Board set out his periods of detention. The Board found him to be last detained for 4 weeks just before he finally left Vietnam with his family in July 1990. Para.81 of the Hand Book reads :-
"It may not always be possible to establish a casual link between the opinion expressed and the related measures suffered or feared by the applicant. Such measures have only rarely been based expressly on 'opinion'. More frequently, such measures take the form of sanctions for alleged criminal acts against the ruling power".
Granted that the Immigration Officer disbelieved the applicant husband, but the allegations (some accepted by the Board) of his family reputation, his own conduct and experiences, and the suspicion of him being a spy for the Church and China are sufficient for raising the issue: did he have a well-founded fear of persecution by reason of his imputed political opinion? There is nothing to show that the Immigration Officer or the Board had addressed their minds to this raised issue. It is equally patent that no evidence on that issue had been attempted to be isolated for consideration.
65. In any case, there is no or no clear indication that any two or more of these issues and their respective evidential bases had been cumulatively assessed and evaluated by either the Immigration Officer or the Board.
66. It cannot be said that any part of the reasons of the Immigration Officer or the Board was directed or clearly directly to these issues.
67. I have dealt with the various matters on which there was a real likelihood of eliminating the apparent inconsistencies with the aid of read back. An area close to read back is the procedural fairness by allowing the husband applicant a reasonable opportunity of commenting on prejudicial materials before an adverse conclusion was drawn. In Re H K , supra., Lord Parker, C.J. was of the view that the Immigration Officer acted unfairly when he did not allow a 16- year old immigrant time to establish the requirements in the section and for that purpose, disclose what his immediate impression of his age was. The immigrant must be able to disabuse the Immigration Officer. In R. v. Secretary of State for the Home Department ex parte Frank Hughtons Yemoh , [1988] Imm AR 595, at pp.605 and 606 the Secretary of State was found to have made only the "most cursory investigation into material medical issue" and failed to investigate sufficiently the applicant's escape from Ghana. Hutchison, J. concluded that fairness required the Secretary of State to give "an opportunity (to the applicant) of considering and seeking to refute these two bases which led the Secretary of State to infer ... untruthfulness in his account". In Marion Mamei Gaima v. Secretary of State for the Home Department supra ., the asylum-seeker's credibility was questioned on material disclosed in a late affidavit and the Court of Appeal held that it was unfair for her not to have the opportunity of giving her explanation of the facts deposed to in the late affidavit, on which for the first time her credibility was put in issue. Kennedy J. distinguished Gaima in R. v. Secretary of State for the Home Department, Ex parte "K" , [1990] Imm AR 393 at p.395 :-
"It seems to me to be entirely clear that what happened in (Gaima) was that an issue was raised by the Secretary of State on which the applicant had not had a proper opportunity to comment, and that was considered by the Court of Appeal to be at least potentially material. In the present case nothing of that sort has occurred. This applicant simply on a number of occasion has been given the opportunity to put forward matters on which he relies. He availed himself of that opportunity and to my mind it is of considerable significance he has availed himself of the opportunity with the advantage of legal representation. If at the end of the day the Secretary of State comes to the conclusion, as he has in this case, then what has been said on those occasions of itself leads the Secretary of State to the view that this applicant's credibility is unsatisfactory, that is a decision which the Secretary of the State is entitled to take. He does not have to go on and on, going backwards and forwards for further interviews and saying, 'now I want you to explain why on the last occasion you said something you did not say before'."
68. In Celal Yurekli v. Secretary of State for the Home Department , [1991] Imm AR 153, the English Court of Appeal held that where the Secretary of State had not introduced a new element, he was not obliged to confront the asylum- seeker again with his provisional conclusion. McCowan L.J. with whom the other members of the Court of appeal agreed, said at p.156 :-
"There was no breach of natural justice here, the Minister had not introduced a new factor upon which the appellant had had no opportunity to comment. He had listened to everything that had been said and had reached a conclusion."
In Yurekli the applicant had made no mention of certain event or its consequences. Later when he was given the "minded to refuse" letter, he was expressly asked as to whether there was anything else that had happened to him that he wished to tell the authority about but which was not already in his explanation. The answer from the applicant was "No". The applicant further assured the authority that he had given all the facts. On his behalf, a body called "Rights and Justice" subsequently brought to the attention of the Minister the event and its consequences. The Minister decided in his decision letter that if there had been any truth in the claim made on that event, it was decidedly not regarded by the applicant as a reason for fleeing Turkey. The applicant had a full opportunity to give his facts on all the issues.
69. At the heels of these cases, Potts, J's decision in R. v. Secretary ofState for the Home Department, Ex parte Ayse Oran , [1991] Imm AR 290 stands out on its own. In his "minded to refuse" letter, the Secretary of State voiced his disbelief that the Turkish authorities would persecute the applicant given her limited political activities and the isolated incidents she had been involved in. The Secretary of State also did not find it credible that six months after her absence from Turkey, the authorities would suddenly express a renewed interest in her. Potts J. leant heavily on the observations of May L.J. in Gaima that in asylum cases, decisions were to be subjected to a "vigorous examination" and that the decision-making process must be ensured to be "wholly fair throughout". Without more, Potts J. ruled that it would be unfair not to give the asylum-seeker an opportunity to comment on the matters in the "minded to refuse" letter from which adverse conclusions had been drawn. Ayse Oran is not an easy case to reconcile.
70. It would seem that if an asylum-seeker was, or must have been aware of the issue from which an adverse conclusion was drawn, he could not complain of not being invited again to comment on it if he had had a proper opportunity to say all he wished to say on that issue. See R. v. Secretary of State for the Home Department, Ex parte H. Bolat , supra ., p.420 per Henry, J. Much would depend on the facts of each case, bearing in mind that the asylum-seeker's claim is one of gravity, the decision of which will be examined vigorously to ensure fairness throughout the whole of the decision-making process. If an Immigration Officer acts with fainess and thoroughness, e.g. when his suspicions (are) aroused, he makes them known to (the applicant) ... (and gives) him every opportunity of dispelling them ...... There (is) no need at all for the Immigration Officer to put (his enquiries made elsewhere) to him where they (prove) adverse." R. v. Secretary of State for the Home Department, Ex parte Mughal, [1974] 1 Q.B. 313 at p.325 D-E, per Lord Denning M.R.
71. In this case, the husband applicant had ten long sessions with the Immigration Officer and he had another session for re-interview. The wife applicant had six equally lengthy sessions with the Immigration Officer. Apart from the three issues not having been considered, it would be difficult to make good any claim that these applicants had no full opportunity to relate their whole story on the other issues to the authorities. Of course, in all real likelihood the applicants could still have offered more with the benefit of read back.
72. For the Board, the position was wholly different, particularly when the Board made some findings significantly different from those made by the Immigration Officer. The Board informed the husband applicant right from the inception in these terms :-
"We have not come here to ask you to repeat the whole of your life story or other events which led to your coming to Hong Kong and claiming refugee status. Our intention to-day is to ask you some questions in order to assist the Board in arriving at the right conclusion ." (Emphasis added)
The Board asked 50 questions and ended the interview with the question :-
"Apart from what has already been advanced to the Board by you or by those counselling you, is there anything in addition that you feel the Board should know which might assist your claim to be recognised as a refugee? If so, you may tell this Board now."
To that question, the husband applicant replied :- "No, thank you."
73. At the interview, the Board had not outlined to the husbandapplicant matters that were thought to require re-consideration. Unless matters troubling the Board were and continued to remain the known issues, the applicants should both have been offered another opportunity to assist. With numerous new findings made, particularly when credibility was no longer said to be wanting, it would be difficult to deny that the Board's approach was or must have been significantly adjusted. It may even be hard to refuse a demand for a re-examination of all the other matters on which the Board asked no questions, with what could only be a variant mental reception. In fact, with such drastic change in findings and stance, it might be argued that there was a need for the entire case to be reventilated. The Board merely asked selective questions. The husband applicant should really have been given some idea what, in the case as a whole, the Board was enquiring into. The wife applicant should likewise have been, for the same parity of reasoning, told. The concluding question cannot be fairly taken as an invitation to the husband applicant to address on any or any new issues. The husband applicant had been explicitly told that his participation was somewhat restricted. On what must be a different basis for evaluation before the Board, at least the issues which the Board found necessary to examine again should have been, in the circumstances of this case, clearly identified to the applicants.
74. Next I turn to curability. The notice of application for review must be accompanied by any representations and documentary evidence which the applicant wishes the Board to consider. Reg.5(2) of the Immigration (Refugee Status Review Boards) (Procedure) Regulations. The heading for Reg.7 is : "Papers to be made available to the representative." The Board may ask questions arising on the papers before it. Reg.10(1). It is reasonably clear that the words "papers before it" must include both the papers in Reg.7 and the representations and documentary evidence in Reg.5(2). They are all papers placed before the Board. The Board is at liberty to ask questions on all these papers of both the applicant for review and the Immigration Officer. The Board may even consider any matter beyond the notice of application or representations made on the applicant's behalf accompanying his notice of application Reg.9. The applicant may comment on answers given by the Immigration Officer to the questions asked of him by the Board under Reg.10. And the Board must take into consideration these comments as "representations". Reg.11. In addition, the Board may further receive and consider any evidence which appears to be relevant to the issues before it. See proviso to Reg.11. Indeed, the Board enjoys a de novo hearing without practically any restraints. The Board sits in a different administrative or executive capacity, s.13F(7), and in tranquility without the attendance of the applicant or his representative, s.13F(4). But these do not detract from the fact that the Board is to have a fresh and full rehearing, a de novo hearing. Before the Board, an applicant has a fair and adequate opportunity of dealing with any findings and comments which are critical of or adverse to him in the written reasons of the Immigration Officer.
75. In Lloyd v. McMahon , supra ., at 653H - 654B, Dillon L.J. observed :-
"The question whether a decision initiated by a breach of the rules of natural justice - i.e., by unfairness, e.g. by failure to allow a person an opportunity to be heard - can be cured or made good by a subsequent hearing has been considered in a number of cases recently. It is plain that no clear or absolute rule can be laid down - see per Lord Wilberforce in Calvin v. Carr [1980] AC 574, 592C-D and per Barwick C.J. in Twist v. Randwick Municipal Council (1976) 12 A.L.R. 379, 384. If the scope of any permissible appeal is limited, so that it does not involve an examination of the circumstances of the case de novo on evidence not limited to that which was before the original tribunal, it may well be that the appellate hearing will not cure the defects of the original decision."
76. At p.669E Woolf L.J., as he then was, made the following contribution :-
"Expressing the matter slightly differently, if the whole procedure is properly regarded as being fair, then to strike that procedure down because of a flaw in part will be to apply an unduly technical approach. My view of the test receives some support in de Smith's Judicial Review of Administrative Action , 4th Edition (1980), p.242 et seq. and is in accord with Lord Wilberforce's opinion in Calvin v. Carr [1980] AC 574. Furthermore it does not have the flaw to which Megarry J. referred in Leary v. National Union of Vehicle Builders [1971] Ch.34 because it presupposes Parliament gave the complainant no more than a right to a fair hearing in the proceedings as a whole."
77. At p.709G in their Lordships' House, Lord Bridge had this to say :-
"But I am clearly of the opinion that when the court has, as here in fact conducted a full hearing on the merits and reached a conclusion that the issue of the Secretary was justified, it would be an erroneous exercise of discretion nevertheless to quash the certificate on the ground that, before the matter reached the court, there had been some defect in the procedure followed."
At p.716B - G Lord Templeman advised :-
"Mr Blom-Cooper relied on the dictum of Megarry J. in Leary v. National Union of Vehicle Builders [1971] Ch. 34, 49 that 'a failure of natural justice in a trial body cannot be cured by a sufficiency of natural justice in an appellate body'. This dictum was enunicated in connection with an appeal from one domestic tribunal to an appellate domestic tribunal. In Calvin v. Carr [1980] AC 574, 593, Lord Wilberforce, delivering the advice of the Board, demurred to this dictum as being 'too broadly stated' and, at p.592, recognised and asserted
'that no clear and absolute rule can be laid down on the question when the defects in natural justice appearing at an original hearing, whether administrative or quasi judicial, can be 'cured' through appeal proceedings.'"
Here, in these proceedings, the Board is not bound by any questions of law or fact reached by the Immigration Officer. The Board is entitled to consider the review on its merit and on the basis of all the evidence presented to it. The enquiry before the Board may be broadened, as justice requires it, to ensure that the issues are fully decided on their true merits. In my view, the Board on review is capable of curing defects, if any, made by the Immigration Officer. But for the reasons I have given, some of the mistakes of the Immigration Officer would seem to have been perpetrated before the Board which also made its own share of mistakes.
78. The Immigration Officer and the Board were both entitled to the pertinent Country Conditions and information in the departmental file and other information, documentary or otherwise, which is of probative value. With so much undisclosed material - I use the word "undisclosed" advisedly not in a critical sense - I cannot venture to condemn the decision of the Immigration Officer as embraced by the Senior Immigration Officer and Chief Immigration Officer as well as the decision of the Board as absurd.
79. It would be unproductive to seek to relate the multifarious grounds on which relief is sought to the conclusions I have reached. Suffice it for me to say, for the decisions questioned, I make an order in terms of the orders sought in paragraphs 1, 2, 4 and 6 of the relief. These decisions be removed into this court and accordingly quashed. It hardly need be said that the applicants are to be interviewed by another Immigration Officer. I shall have to consider making an Order to that effect if and when the applicants see fit so to apply.
80. I must express my gratitude to all counsel for their closely reasoned submissions and the courtesy they extended to me in this very long case.
(B. Liu)
Judge of the High Court
Representation:
Mr M.T. Darwyne (M/s Knight & Ho) for the Applicants
Mr W. Marshall, Q.C. & Mr T. Law, S.C.C. of Crown Solicitor for the Respondents