C and Others v Director of Immigration and Another
| Judge | Sir Anthony Mason,Tang,Chan,Bokhary,Ribeiro |
| Neutral Citation | [2013] HKCFA 21 |
| Date | 25 March 2013 |
| Court | Court of Final Appeal (Hong Kong) |
([2013] HKCFA 21)
People's Republic of China, Hong Kong Special Administrative Region, Court of Final Appeal.
(Chan, Ribeiro and Tang, Permanent Judges; Bokhary and Sir Anthony Mason, Non-Permanent Judges)
Aliens — Refugees — Applicants seeking refugee status in Hong Kong — Convention relating to the Status of Refugees, 1951, and 1967 Protocol (“Refugee Convention”) — Article 33(1) of Refugee Convention — Non-refoulement principle — Whether part of customary international law — Whether acquiring status of jus cogens — Determination of refugee status by Hong Kong Sub-Office of United Nations High Commissioner for Refugees (“the UNHCR”) — Exercise of discretion by Director of Immigration — Whether Director of Immigration under legal obligation to determine refugee status — Whether Director of Immigration having legal obligation to inquire into non-refoulement claims
Relationship of international law and municipal law — Refugee Convention — Refugee Convention not extended to Hong Kong — Immigration Ordinance Cap. 115 1972 — Customary international law — Whether rule of customary international law prohibiting refoulement of refugees — Whether rule acquiring peremptory norm status — Whether rule incorporated into Hong Kong domestic law — Judicial review — Whether decision to refoule subject to judicial review — Whether high standard of fairness applicable
Sources of international law — Customary international law — Jus cogens — Whether rule of customary international law prohibiting refoulement of refugees — Whether rule acquiring peremptory norm status — The law of the Hong Kong Special Administrative Region of the People's Republic of China
Summary:2The facts:—The three appellants claimed protection as refugees after arriving in Hong Kong, in accordance with the Convention relating to the Status of Refugees, 1951, and its 1967 Protocol (“the Refugee Convention”). The Hong Kong Sub-Office of the United Nations High Commissioner for Refugees (“the UNHCR”) considered and rejected each of the appellants' claims. The respondent Director of Immigration (“the Director”), who had a wide discretionary power over immigration control conferred by statute, ordered that each of the appellants be removed from Hong Kong to their respective countries.
The Director maintained the practice of allowing refugee claimants to remain temporarily pending the determination of refugee status by the UNHCR, and upon a successful claim, pending resettlement elsewhere in the world. This practice reflected the principle of non-refoulement found in Article 33 of the Refugee Convention.3
The appellants' claims for judicial review of the Director's decisions were unsuccessful in both the Court of First Instance and the Court of Appeal. They appealed to the Court of Final Appeal on two grounds. First, they maintained that the principle of non-refoulement as contained in Article 33 of the Refugee Convention had become a rule of customary international law and a peremptory norm, and thus part of the common law of Hong Kong. To give effect to that law, the government of Hong Kong was required to make its own determination regarding refugee status, and could not return a refugee claimant without sufficiently inquiring into their non-refoulement claims. Secondly, the appellants argued that the decision of the Director to return a refugee claimant was subject to judicial review and was required to satisfy high standards of fairness given the gravity and importance of the situation.
Held (unanimously):—The appeal was allowed.
(1) When deciding whether to exercise the power to remove a refugee claimant, the Director of Immigration was required to make his own determination as to whether a refugee claim was well founded. While the Director was entitled to give weight to a finding of the UNHCR on refugee status, they could not defer to it. Such a determination was required to satisfy a high standard of fairness due to the gravity of the consequence of the determination (paras. 14–57, 63–6 and 71–99).
(2) It was not necessary to make a finding as to whether the principle of non-refoulement had become a rule of customary law or a peremptory norm (paras. 57–8 and 67–8).
The following is the text of the judgment of the Court:
1. I would, for the reasons given in the judgment of Mr Justice Tang PJ and the further reasons as explained in the judgment of Sir Anthony Mason NPJ, allow these appeals and make the order and directions as proposed by Mr Justice Tang in paragraphs 60 and 62.
2. I agree with the judgment of Sir Anthony Mason NPJ and, subject to that judgment, am also in broad agreement with the judgment of Mr Justice Tang PJ.
3. The United Nations Convention Relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) (collectively, the “Convention”) impose important obligations on contracting states parties. Such obligations include an obligation to “facilitate the assimilation and naturalization of refugees” (Art. 34).1 A refugee is a person who “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 …” (Art. 1A(2)).2
4. Both the UK and the PRC are contracting states to the Convention. However, as is permissible under Art. 40, neither the UK (prior to 1997) nor the PRC has applied the Convention to Hong Kong Special Administrative Region (“HKSAR”).
5. It is the firm policy of the HKSAR not to grant asylum to refugees. That policy is not challenged. It is not contended that HKSAR Government (“HKSARG”) is obliged to “facilitate the assimilation and naturalization of refugees”.
6. These proceedings are concerned with the principle of nonrefoulement expressed in Art. 33 as follows:
No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular group or political opinion.3
7. The appellants claimed protection as refugees upon or shortly after their respective arrival in HK. They made their claims4 to the UNHCR which processed them in accordance with the procedural standards for Refugee Status Determination (“RSD”) under UNHCR'S mandate. The critical decision for the Director in such cases is whether to order the removal of such claimants and if so, to which country they should be removed. The Director's practice is that pending RSD by UNHCR, a refugee claimant in Hong Kong, would be permitted to remain and that if the claim succeeds, the refugee would not be repatriated pending resettlement.
8. C, the appellant in FACV 18 of 2011, is a national of the Democratic Republic of Congo (Zaire). His claim for refugee status was rejected by UNHCR on 19 March 2004 and his appeal dismissed by UNHCR by letter dated 24 March 2004. The letter stated, inter alia, that he was excluded by virtue of Article 1(F)(a). On 24 March 2004, a Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) claim was lodged on his behalf. The CAT claim has not been resolved.
9. The home country of KMF, the appellant in FACV 19/2011, is the Republic of Congo (“Congo-Brazzaville”). He made a refugee claim to the UNHCR on 17 November 2004. His appeal was dismissed in July 2006. It was stated in the Form 86A filed on 23 April 2007, he had not “as yet … made” a CAT claim.
10. BF (FACV 20/2011) is a citizen of Congo-Brazzaville. He arrived in Hong Kong on 10 November 2003 and made a refugee claim with UNHCR on 11 November 2003. His claim and appeal were rejected in early 2006. He has made a CAT claim which is still outstanding.
11. The appellants accept that as the Convention has not been extended to the HKSAR, Art. 33 has no direct application. However, they contended, with the support of the intervener, the UNHCR,6 that the principle of non-refoulement (“PNR”) has become a rule of customary international law (“CIL”) as well as a peremptory norm, and as such, has become part of the common law of HKSAR. They also contended, again with UNHCR's support, that to give effect to such CIL, HKSARG should make its own RSD, and the Director must not return any refugee claimant without appropriate enquiry into their PNR claims. This was the first of the appellants' two grounds.
12. Although the Court of Appeal only granted leave to appeal on issues covered by the first ground, Mr Michael Fordham QC, for the appellants, relied on a second ground, namely that, in any event, the Director's decision to return a refugee claimant is subject to judicial review and must satisfy the high standards of fairness required given the gravity and importance of the decision.7
13. I will deal with Mr Fordham's second ground first.
14. If a person is recognized as a refugee by the UNHCR, Hartmann J said:
10. … it is the inevitable practice of the Director not to repatriate that person but to afford him temporary refuge until the UNHCR—not the Hong Kong Government—is able to settle that person elsewhere in the world. I have described this practice of the Director as “inevitable” because, during the course of the hearing, it was never suggested that the Director had in fact returned a recognised refugee to a country where there was a real risk he would be persecuted.8
15. This practice has to be considered in the context of immigration control in Hong Kong.
16. Art. 154 of the Basic Law (“BL 154”)...
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