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Ja v Director Of Immigration

Judgment Cited authorities 15 Cited in Precedent Map Related
Vincent
Judgment Date27 November 2012
Year2012
Judgement NumberCACV48/2011
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV48/2011 JA v. DIRECTOR OF IMMIGRATION

CACV 44/2011, CACV 45/2011, CACV 46/2011, CACV 47/2011
AND CACV 48/2011

CACV 44/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 44 OF 2011

(ON APPEAL FROM HCAL NO. 10 OF 2010)

________________________

BETWEEN

MA Applicant
and
DIRECTOR OF IMMIGRATION Respondent

________________________

CACV 45/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 45 OF 2011

(ON APPEAL FROM HCAL NO. 73 OF 2010)

________________________

BETWEEN

GA Applicant
and
DIRECTOR OF IMMIGRATION Respondent

________________________

CACV 46/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 46 OF 2011

(ON APPEAL FROM HCAL NO. 75 OF 2010)

________________________

BETWEEN

PA Applicant
and
DIRECTOR OF IMMIGRATION Respondent

________________________

CACV 47/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 47 OF 2011

(ON APPEAL FROM HCAL NO. 81 OF 2010)

________________________

BETWEEN

FI Applicant
and
DIRECTOR OF IMMIGRATION Respondent

________________________

CACV 48/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 48 OF 2011

(ON APPEAL FROM HCAL NO. 83 OF 2010)

________________________

BETWEEN

JA Applicant
and
DIRECTOR OF IMMIGRATION Respondent

________________________

(Heard Together)

Before: Hon Stock VP, Kwan and Fok JJA in Court

Dates of Hearing: 4-7 September 2012

Date of Handing Down Judgment: 27 November 2012

________________________

J U D G M E N T

________________________

Hon Stock VP:

1. I agree with the judgment of Fok JA.

Hon Kwan JA:

2. I agree with the judgment of Fok JA.

Hon Fok JA:

A. Introduction

3. These are appeals from a judgment of A. Cheung J (now Cheung CJHC) dated 6 January 2011 by which, save to the limited extent described below, he dismissed five applications for judicial review against the Director of Immigration.

4. It is common ground that the main issue in these appeals, as it was below, “concerns the circumstances, if any, under which a mandated refugee or a screened-in torture claimant, who has been stranded in Hong Kong for a prolonged period of time and has little prospect of resettlement (or departure) in the immediately foreseeable future, may be permitted to take up available employment in Hong Kong, pending resettlement (or departure)” (Judgment §1).

5. That issue arises because, as a result of the need, it is said, in view of Hong Kong’s circumstances, to maintain effective immigration control, as well as the fact that the United Nations Convention relating to the Status of Refugees 1951 has never been applied to Hong Kong, the Government has consistently denied any legal obligation as regards refugees, including any obligation to admit refugees and permit them to take up available employment here. Similarly, in respect of torture claimants, although the CAT[1] applies in Hong Kong, the Government denies any legal obligation to allow screened-in torture claimants to work in Hong Kong. Nevertheless, the Director acknowledges having a discretion, to be exercised on an exceptional basis, to permit mandated refugees or screened-in torture claimants to work.

6. In these appeals, the appellants maintain their challenge to the lawfulness of the Government’s denial of any legal obligation to permit them to work whilst they are here in Hong Kong.

B. The appellants

7. Of the appellants in this Court, applicants below, four of them are mandated refugees and one is a screened-in torture claimant. The Judge described their individual circumstances in §§2 to 11 of the Judgment below. It is not necessary to repeat those circumstances at length in this judgment but instead it is sufficient to say that it is clear from them that the appellants have all been effectively stranded here in Hong Kong for a prolonged period of time: each of them has been here between 7 and 12 years and they each respectively obtained official recognition of their status between 4 and 10 years ago.

8. As a matter of context, it was stressed on behalf of the appellants that they are not asylum seekers but instead they are persons who have had their status officially recognised as mandated refugees and a screened-in torture claimant respectively. As such, they are not economic migrants. They are individuals who necessarily cannot return to their homes because they cannot be expected to return to face a well-founded fear of persecutory treatment or torture. They are stranded in Hong Kong in the sense that if they could go elsewhere they would but they cannot. In addition, they are unable to engage in any economic activity either here or anywhere else.

9. It is also correct, as a matter of context, that the appellants form part of what is at the moment a small group: certainly a very small group relative to the total number of asylum seekers in Hong Kong. The evidence shows that in the years 2005 to 2008 a total of 5,838 new claims for asylum were made, 5,396 claims were concluded (i.e. recognised, rejected or withdrawn) and 228 asylum seekers recognised as mandated refugees.[2] The evidence also shows that, of the total of 82 mandated refugees in Hong Kong as at 31 January 2010, there are only 15 such mandated refugees who have remained in Hong Kong for more than 5 years post-recognition of their status.[3] JA, the screened-in torture claimant, is the only such torture claimant at this time.

C. The Judgment below

10. In the court below, the appellants challenged the Government’s position and asserted that it infringed various human rights provisions, namely the right to privacy (BOR14[4]/ICCPR17[5]), the right not to be subjected to cruel, inhuman or degrading treatment (BOR3/ICCPR7), and the right to work (ICESCR6[6]). They also relied on rights under the Basic Law, including in particular the right to freedom of choice of occupation in BL33[7].

11. The Judge held (Judgment §42), following the judgment of this Court in Ubamaka Edward Wilson v The Secretary for Security [2011] 1 HKLRD 359, that the appellants’ reliance on the rights guaranteed under the HKBOR and the ICCPR must be rejected because of HKBORO[8] s. 11.

12. So far as the appellants’ reliance on ICESCR6 was concerned, the Judge held (Judgment §47) that the restrictions placed by the Director on mandated refugees and screened-in torture claimants in relation to their ability to work whilst remaining in Hong Kong could not be successfully challenged under that provision by reason of the reservation made by the UK Government when the ICESCR was applied to Hong Kong.

13. In relation to BL33, the Judge held that, on a generous and purposive construction, this does not guarantee the right to be employed or to be employed in any particular field of occupation (Judgment §65) and that, when BL33 was read together with BL39(1) and BL41, the asserted right to take up available employment was not intended by the drafters of the Basic Law to extend to mandated refugees and screened-in torture claimants, such a right having been specifically removed by the UK Government’s reservation to ICESCR6 (Judgment §71).

14. The Judge therefore held that the appellants’ judicial review challenges, insofar as they were based on rights guaranteed under the various instruments in question as directly enforceable rights in their favour, must fail (Judgment §76).

15. However, the Judge accepted that in principle, in the case of a mandated refugee or screened-in torture claimant, a prolonged period of prohibition against taking up available employment, when there was little prospect of the individual being resettled or being able to depart in the immediately foreseeable future, could, depending on the circumstances, amount to inhuman or degrading treatment (Judgment §79) but this would turn on the circumstances of an individual case (Judgment §80) and one could not say that the Director’s policy amounted to inhuman or degrading treatment of mandated refugees and screened-in torture claimants, even in a prolonged situation (Judgment §82).

16. Applying the heightened anxious scrutiny approach, the Judge did not consider that the Director’s policy was irrational or unreasonable (Judgment §104) but he did conclude that, in refusing their requests, the Director had not properly considered the requests by two of the appellants (MA and GA) to grant them permission to take up available employment (Judgment §128) and quashed those two decisions (Judgment §131).

17. Finally, the Judge rejected the appellants’ challenges to their being required to enter into recognizances (Judgment §140) and to the appellant JA’s challenge to the deportation order made against him (Judgment §144).

D. The issues on appeal

18. On appeal, the appellants maintained their contention that the Government’s denial of a legal duty to permit them to work contravened the same human rights provisions, namely the right to privacy (BOR14/ICCPR17), the right not to be subjected to cruel, inhuman or degrading treatment (BOR3/ICCPR7), and the right to work (ICESCR6).

19. They advanced, as a core proposition, that “The Director cannot justify the application of a provision or policy denying permission to work to an individual, pending his resettlement or departure, who is: (a) a mandated refugee or screened-in torture claimant, and (b) who has already been present in Hong...

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