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In Re Le Tu Phuong And Another

Judgment Cited authorities 24 Cited in Precedent Map Related
Vincent
Judgment Date23 June 1993
Year1993
Citation[1993] HKLR 303
Judgement NumberHCMP2368/1992
Subject MatterMiscellaneous Proceedings
CourtHigh Court (Hong Kong)
HCMP002368A/1992 IN RE LE TU PHUONG AND ANOTHER

HCMP002368A/1992

1992, M.P. No.2368

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

_____________

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,
14 - 16, 20 - 23, 26 - 30 April 1993, 3 -7, 10 - 11, 14, 17 - 21, 24 - 28, 31 May 1993, 1 - 4, 8 and 16 June 1993

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, [1989] Imm AR 205 at p.207 per May L.J.; Lee Bun v. Director of Immigration, [1990] 2 HKLR 466 at p.471 C; Nguyen Ho & Others v. Director of Immigration, [1991] 1 HKLR 576. One could not be over- reminded that the supervisory courts are merely concerned with the decision- making process and not the decision itself.

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...

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