RV v Director of Immigration
| Neutral Citation | [2008] HKCFI 196 |
| Date | 10 March 2008 |
| Court | Court of First Instance (Hong Kong) |
Hartmann J
Aliens Claim for refugee status Convention on the Status of Refugees, 1951 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 Applicant asylum seeker and torture claimant Applicant entering Hong Kong on false passport Secretary for Justice instituting criminal proceedings against applicant Whether decisions of Secretary for Justice to prosecute applicant subject to judicial review Hong Kong's Basic Law Duties of courts in respect of new constitutional order in Hong Kong Whether decisions of Secretary for Justice lawful Whether decisions contradicting Secretary for Justice's own prosecution policy Whether decisions undermining applicant's rights to seek asylum and protection from torture
Relationship of international law and municipal law Convention on the Status of Refugees, 1951 Applicability Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 Customary international law Applicant asylum seeker and torture claimant Obligations of Hong Kong Whether Hong Kong undertaking never to prosecute claimant entering Hong Kong illegally The law of the Hong Kong Special Administrative Region
Summary: The facts:The applicant, who appeared to be a citizen of the Republic of Congo, arrived in Hong Kong in 2005 and was permitted to visit for fourteen days. He had entered Hong Kong on a false passport. The applicant then filed a claim with the Hong Kong Sub-Office of the United Nations High Commissioner for Refugees for refugee status in accordance with the 1951 Convention relating to the Status of Refugees and its 1967 Protocol
(the Refugee Convention).2 He claimed that, if returned to the Republic of Congo, he was at real risk of being persecuted on account of his race, religion, nationality, membership of a particular social group or political opinionThe applicant was subsequently charged with using a false travel document and with making false representations in respect of that passport to an immigration officer in order to enter Hong Kong and criminal proceedings were instituted against him by the second respondent, the Secretary for Justice. The applicant then made a claim under the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention against Torture). He claimed that if returned to the Republic of Congo, there were substantial grounds for believing that he would be in danger of being subjected to torture.
The applicant sought judicial review. He challenged the lawfulness of the Secretary for Justice's four decisions3 to prosecute him and to bring that prosecution to trial and sought orders of certiorari to quash each of those decisions and, in addition, or alternatively, an order prohibiting any further continuation of the criminal proceedings against him. He claimed inter alia that the decisions were inconsistent with, and contradicted, the Secretary for Justice's own prosecution policy and that they undermined the applicant's basic right to seek asylum in Hong Konga right enshrined in international lawand his right to seek protection from torture under the Convention against Torture.
Held:The application for judicial review was refused.
(1) Prior to the adoption of the Basic Law, it had been clear that the Secretary for Justice's power to control criminal prosecutions was not subject to judicial review. However, under the Basic Law that power was amenable to judicial review but only to a very limited extent. Although Article 63 of the Basic Law enshrined the independence of the Secretary for Justice to control criminal proceedings as he thought best, his power was bestowed by the Basic Law and was to be exercised within constitutional limits. That those limits were to be determined by courts did not defy binding precedent but rather recognized a new constitutional order and the duties of courts in respect of that new order. Since the Secretary's prosecutorial independence remained a linchpin of the rule of law under the Basic Law, only in exceptional circumstances could it be demonstrated that he had acted outside of his very broad powers (paras. 3676).
(2) The decisions made to prosecute the applicant were lawful. The Secretary for Justice was not acting contrary to his own prosecution policy, which gave him discretion as to whether to prosecute an asylum seeker or torture claimant. He had not acted unconstitutionally. Neither did he defy his
constitutional powers in persisting with criminal proceedings after the applicant had made his claim under the Convention against Torture (paras. 77103)(3) Although Article 14(1) of the Universal Declaration of Human Rights, 1948 declared that everyone had the right to seek and enjoy asylum from persecution, Hong Kong had never had a general policy of asylum. Since the Refugee Convention did not extend to Hong Kong, its obligations arose under the Convention against Torture, under which it had undertaken not to refoule a person who was at risk of torture and, in determining that issue, had set up a screening process. It had not, integral to those obligations under the Convention against Torture and/or under customary international law, undertaken never to prosecute a claimant who had entered Hong Kong illegally, no matter what the circumstances of that illegal entry. The Secretary of State's prosecution policy, in stating that asylum seekers and/or torture claimants were not normally prosecuted for immigration offences related to their entry into Hong Kong pending the final determination of their claims, spoke of what was normally to be done, not of what must always be done (paras. 77112).
The following is the text of the judgment of the Court:
1. This application for judicial review raises the fundamentally important question of whether the power of the Secretary for Justice to institute criminal proceedings is subject to the supervisory jurisdiction of the courts and, if so, in what circumstances.
2. Prior to the Basic Law coming into effect, this court was bound by the judgment of the Hong Kong Court of Appeal in Keung Siu Wah v. Attorney General [1990] 2 HKLR 238. That judgment held that a decision of the Secretary for Justice (then the Attorney General) whether or not to bring criminal proceedings was not subject to judicial review. On behalf of the applicant, however, it is asserted that the Basic Law, on a true construction, must now permit this court in an appropriate case to judicially review such a decision.
3. The applicant, a citizen apparently of the Republic of Congo, came to Hong Kong in January 2005, being permitted to remain as a visitor for 14 days.
4. Within a few days of his arrival, the applicant filed a claim with the Hong Kong Sub-Office of the United Nations High Commissioner for Refugees (the UNHCR) to be recognised as a refugee in accordance with the provisions of the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol (the Refugee Convention). In short, the applicant sought the recognition of the UNHCR that he was a person who, if returned to the Republic of Congo, was at real risk of being persecuted on account of his race, religion, nationality, membership of a particular social group or political opinion.
5. The Refugee Convention has never been extended to Hong Kong. The Government has a firm policy of not granting asylum, a matter to which I shall turn later. However, an ad hoc arrangement has been reached with the UNHCR in terms of which, on an independent basis, the UNHCR will determine matters of refugee status. If a person is recognised as a refugee, Hong Kong will grant that person temporary refuge until the UNHCRnot the Hong Kong Governmentis able to settle him elsewhere in the world.
6. That being said, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention Against Torture) has been extended to Hong Kong. Claims made under that Convention oblige the Hong Kong Government itself to conduct a screening exercise.
7. Many refugee claimants make claims also under the Convention Against Torture. The applicant followed this procedure. He lodged his claim some nine months after his arrival in Hong Kong: in early October 2005. His claim was based on the assertion that, if returned to the Republic of Congo, there were substantial grounds for believing that he would be in danger of being subjected to torture.
8. In respect of persons who break Hong Kong's immigration laws in order to enter Hong Kong and seek asylum here, the Secretary for Justice has a reasonably long-standing prosecution policy. I am told that it was in place at...
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