C v Director of Immigration

JurisdictionHong Kong
CourtCourt of First Instance (Hong Kong)
Hong Kong Special Administrative Region, Court of First Instance

Hartmann J

C and Others
and
Director of Immigration1

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 on humanitarian grounds Whether Hong Kong Government having legal obligation not to expel refugee Whether Hong Kong Government having legal obligation to determine refugee status under customary international law and common law

Relationship of international law and municipal law Refugee Convention Refugee Convention not extended to Hong Kong Customary international law Whether universal rule of customary international law prohibiting refoulement of refugees Whether rule acquiring peremptory norm status Whether rule incorporated into Hong Kong domestic law Hong Kong policy not to grant political asylum Whether Hong Kong repudiated rule against refoulement of refugees Whether Hong Kong Government having legal obligation not to expel refugee to frontiers of any territory where he would face persecution on account of race, religion, nationality, membership of particular social group or political opinion Whether Hong Kong Government having legal obligation to determine refugee status Exercise of discretion of Director of Immigration on humanitarian grounds

Sources of international law Customary international law Jus cogens Whether universal rule of customary international law prohibiting refoulement of refugees Academic opinion Relevance Requirements for existence of rule Whether rule acquiring peremptory norm status The law of the Hong Kong Special Administrative Region

Summary: The facts:The six applicants for judicial review, C, AK, KMF, VK, BF and YAM, sought refugee status after arriving in Hong Kong in accordance with the Convention relating to the Status of Refugees, 1951, and its 1967 Protocol (the Refugee Convention).2 Each of the six applications for refugee status was considered by the Hong Kong Sub-Office of the United Nations High Commissioner for Refugees (the UNHCR) and rejected.3 The Director of Immigration (the Director) sought the removal of each applicant from Hong Kong to their country of nationality or former habitual residence if necessary.

UNHCR officers determined refugee status independently of the Hong Kong Government by means of an ad hoc arrangement. Since the Refugee Convention had not been extended to Hong Kong, neither the screening of refugee claimants nor the granting of asylum to successful claimants was required by domestic legislation. The inevitable practice of the Director was to afford temporary refuge to a successful claimant until settled elsewhere in the world by the UNHCR. This practice reflected Article 33(1) of the Refugee Convention,4 which contained a prohibition against refoulement.

The applicants claimed that the Director was obliged to observe the principle of non-refoulement, a peremptory norm of customary international law binding upon Hong Kong. They asserted that he had acted unlawfully by delegating his responsibility to determine refugee status to the UNHCR, an independent body immune from judicial scrutiny whose decisions bound a sovereign entity. The Director's practice, they maintained, constituted de facto recognition of the principle of non-refoulement as it had matured into a rule of

customary international law. The Director, however, maintained that he had no formal legal obligation under any rule of international law. He contended that his practice to afford refuge resulted from an exercise of his discretion, each case being considered in good faith on its merits

The applicants sought relief in the form of declarations5 to the effect that the Hong Kong Government, represented by the Director, was itself obliged under both customary international law and common law to determine refugee status.

Held:The applications for relief were refused.

(1) There was a universal rule of customary international law that prohibited the refoulement of refugees. Although in academic opinion, which could not alone make the law, there was no consensus, on balance the principle of non-refoulement as it applied to refugees had grown beyond the confines of the Refugee Convention and matured into a universal customary international law norm.6 While universal adherence was not required for such a rule to come into being, States generally recognized the binding effect of the norm and of a humanitarian law that had evolved from fundamental humanitarian considerations (paras. 93116).

(2) The rule prohibiting refoulement had not yet acquired the status of a peremptory norm. While prohibitions against genocide and slavery had been accepted as peremptory norms and the English courts had accepted that the prohibition of torture had that status, there was controversy about other possible jus cogens rules. Peremptory norm status arose from State practice and its reasons, not from humanitarian ideals. An unwarranted acceptance of peremptory norm status risked bringing the norm into disrepute (paras. 11737).

(3) The customary international law rule prohibiting refoulement of refugees had not been incorporated into Hong Kong domestic law. It had been repudiated by Hong Kong's consistent conduct. There had been no change in Hong Kong's firm and purposive policy not to grant political asylum due to its unique circumstances; humanitarian issues being within the Director's discretion.7 Hong Kong had not acceded to the Refugee Convention and had made specific reservations concerning immigration to the International Covenant on Civil and Political Rights, 1966, and the Convention on the Rights of the Child, 1989. The terms of the Immigration Ordinance had not been expanded and no legislation passed to incorporate the rule, effectively excluding it. The consistent exercise of the Director's discretion not to repatriate persons granted refugee status by the UNHCR had not created de facto recognition of and

adherence to the rule. While a claim for asylum was a basic human right,8 such rights had to yield to the express requirements of domestic laws (paras. 13868)

(4) As the customary international law rule prohibiting refoulement had no application in domestic law, the Hong Kong Government had no legal obligation to screen all refugee claimants. Neither the Refugee Convention nor the rule prescribed set procedures. Although refugee status determinations were primarily the responsibility of national authorities under the Refugee Convention, the role of the UNHCR had broadened and it was well equipped to screen claimants to provide the fairest and most efficient procedure when national authorities would not or could not (paras. 16978).

(5) The Director was not obliged first to screen refugee claimants in considering whether to exercise his discretion on humanitarian or compassionate grounds. He could allow refugee status to be determined by the UNHCR provided that he did not thereby fetter his discretion; he was not bound by its determinations (paras. 17993).

The following is the text of the judgment of the Court:

Introduction

1. These applications for judicial review raise two central issues. The first issue is whether the Government of Hong Kong, acting through the Director of Immigration, has an obligation under customary international law not to expel a refugee to the frontiers of any territory where he would face persecution on account of his race, religion, nationality, membership of a particular social group or political opinion. The second issue is whetherif such an obligation existsthe Government of Hong Kong is obliged, as an integral element of that obligation, to determine the true status of all refugee claimants.

2. Each of the six applicants asserts that he has come to Hong Kong because he has a well-founded fear of persecution in his country of nationality or former habitual residence, that persecution being based on his ethnic origin, membership of a particular social group or political affiliation. Each applicant asserts that, if returned, there is a real risk he will again be subject to persecution. In short, each applicant has sought protection in Hong Kong on the basis that he is a refugee as that word is understood in the 1951 United Nations Convention relating to the Status of Refugees and its 1967 Protocol (the Refugee Convention).

3. The applicants are representative of an increasing number of persons who come to Hong Kong seeking to be recognised as refugees. At

this time, I am told that there are close to 2,000 such claimants. This may not constitute a mass influx but for Hong Kong it is nevertheless a significant number.

4. Hong Kong has never had the Refugee Convention extended to it. In consequence, there is no domestic legislation requiring the screening of persons who claim to be refugees nor the granting of asylum to those whose claims are accepted. As to why this is so, in a paper presented to the Legislative Council Panels on Security and Welfare Services in July 2006, the Government gave the following explanation:

5. Refugee claimants, however, are not simply expelled to their country of nationality or the country from where they have come and left to the hazards of fate. An ad hoc arrangement has been reached with the Hong Kong Sub-Office of the United Nations High Commissioner for Refugees (the UNHCR) in terms of which officers from the UNHCR accept applications from persons in the position of the six applicants and then, independently of the Hong Kong Government, determine whether refugee status should be acknowledged.

6. In ordinary usage, the term refugee is, of course, broad in...

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