HOANG DUC PHONG v. THE DIRECTOR OF IMMIGRATION

1997 A.L. No. 38

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. I propose to grant the Applicant leave to apply for judicial review of the decision of the Director of Immigration that he is not a refugee, and to extend his time for doing so. The immigration officer who took the decision took the view that the punishment which the Applicant received for not complying with his orders to shoot innocent women and children did not amount to persecution, nor did it amount to persecution for a Convention reason. In my view, it is arguable that both those findings are findings which no immigration officer, properly directing himself in law and properly applying the provisions of the Handbook on Procedures and Criteria for Determining Refugee Status issued by the UNHCR, could reasonably have reached.

2. To undergo re-education in a labour camp for an indefinite period, and which lasted for 18 months before the Applicant escaped, is not insubstantial punishment. According to para. 171 of the Handbook, punishment for desertion or draft-evasion can amount to persecution if the reason for the desertion or draft-evasion is an unwillingness to comply with orders which would offend basic rules of human conduct. By analogy, so too would punishment for actually refusing to comply with such orders. I accept that a soldier's conscientious objection to shooting innocent women and children is more a moral than a political stance. But in my view it is arguable that the phrase "political opinion" in Art. 1 of the Convention is wide enough to include a moral stance of the kind with the Applicant claims he took.

3. I take into account the possibility that the Applicant's treatment by the authorities in the late 1980s may have indicated a benevolent attitude towards him on the part of the authorities, but there was, as I see it, and as I think Mr. S.H. Kwok for the Director of Immigration concedes, no evidence before the immigration officer that the authorities were aware that the person with whom they were then dealing had escaped from a labour camp, nor were they aware of what he had done to deserve being sent to the labour camp in the first place.

4. Since the immigration officer's conclusion on the ultimate issue which he had to decide - namely, whether in 1992 the Applicant had a well-founded fear of persecution for a Convention reason if he was returned to Vietnam - was based, in part at any rate, on his belief that the Applicant had not been persecuted in the past for a Convention reason, and since that finding is in my view susceptible to sucessful legal challenge, it follows that the Applicant should be given leave to apply for judicial review.

Representation:

Mr. Robert Whitehead, instructed by Messrs. Pam Baker & Co., for the Applicant.

Mr. S.H. Kwok, Crown Counsel, for the Respondent.