C v. Director of Immigration
Read the full judgment text of HCAL 132/2006 on BabelCite. This High Court CFI judgment was delivered on 18 February 2008.
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 whether – if such an obligation exists – the Government of H
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HCAL 132/2006 and IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 132 OF 2006 ------------------------------ BETWEEN
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------------------------------ (HEARD TOGETHER) Before : Hon Hartmann J in Court Dates of Hearing : 10-14 December 2007 Date of Handing Down Judgment : 18 February 2008 ------------------------------ J U D G M E N T ------------------------------ 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 whether – if such an obligation exists – the 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 scope. It applies to any person who flees his place of abode in order to escape conditions that he believes to be intolerable. Today, ‘humanitarian refugees’, as they are called; that is, persons fleeing civil wars, natural disasters or the generalised anarchy so often present in failed states, make up the greatest number of the world’s refugees. 7.Under the Refugee Convention, however, the term ‘refugee’ is specifically defined and to that extent has become a term of art. Art.33 defines a refugee as a person who —
8.Pursuant to the ad hoc arrangement which I have described, each of the applicants has made a claim to be recognised as a refugee with the UNHCR. Their claims have been investigated. The UNHCR, however, has declined to accord refugee status to any of them. Each of the applicants has appealed by way of an internal UNHCR appeal procedure but those appeals too have been dismissed. 9.In the light of these determinations by the UNHCR, the Director of Immigration (‘the Director’) has sought to have each of the applicants removed from Hong Kong, if necessary back to their country of nationality or former habitual residence. In this regard, as a statement of general policy, in the paper presented to the Legislative Council Panels on Security and Social Services in July 2006, the following was said :
10.Although none of the applicants has been accorded refugee status by the UNHCR, if a person is recognised as a refugee, it means it is accepted that, if repatriated, that person will be open to a real risk of persecution. In such circumstances, 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. 11.This practice on the part of the Director mirrors what has been codified in the Refugee Convention. Art.33(1) of the Convention contains a prohibition against refoulment; that is, a prohibition against expelling or returning a refugee to the frontiers of territories where his life or freedom would be threatened. The article reads :
12.It is to be noted that art.33(1) forbids expulsion or return, it does not talk of the original act of permitting admission. As Kay Hailbronner expresses it in his article, Non-Refoulment and ‘Humanitarian’ Refugees : Customary International Law or Wishful Thinking? (1986) 26 : 4, Virginia Journal of International Law, 857, at 861 :
13.On behalf of the six applicants, it is contended that this inevitable practice on the part of the Director constitutes de facto recognition of the principle of non-refoulment as it has matured into a rule of customary international law. 14.The Director, however, does not acknowledge any formal legal obligation under any rule of international law. On his behalf, it is said that his practice is no more than the exercise of the discretion given to him to manage Hong Kong’s scheme of immigration, a scheme governed by the provisions of the Immigration Ordinance, Cap.115. In the exercise of that discretion, it is said, each case being considered in good faith on its merits, if there are exceptional humanitarian or compassionate grounds, the Director may allow a person to stay in Hong Kong. 15.On behalf of the applicants, however, it is said that, when acting in respect of refugee claimants, the Director is not free of all legal obligations under international law. It is accepted that the Director is not subject to any specific provisions of international treaty law. It is contended, however, that he must act in accordance with norms of customary international law as they apply to refugees which have been incorporated into the common law and therefore into the law of Hong Kong. Indeed, in respect of refugees, it is said that the principle of non-refoulment has matured into a peremptory norm of customary international law – one that is absolute, permitting of no refusal – a norm which is binding on all jurisdictions in the international community, whether or not they are party to the Refugee Convention, and therefore binding on Hong Kong. 16.On behalf of the applicants, it is further said that one of the consequences of the Director being bound by the peremptory norm of customary international law to observe non-refoulment is an obligation imposed on him to first determine who is and who is not a refugee. It is contended that this is not an obligation which can be surrendered to the UNHCR. While the Director may receive assistance when that is needed, it is for him, and nobody else, to determine who is or is not a refugee so that he will know who must be protected from refoulment. 17.Each of the applicants complains that the screening process conducted by the UNHCR is inadequate. They assert that there are often difficulties with interpretation, that the interviews are not ample enough, that claimants are not entitled to be legally represented and that the decisions, when made, lack sufficient reasoning. Perhaps the most serious complaint is that UNHCR determinations are immune from judicial scrutiny. 18.The UNHCR, while it accepts that its resources are often stretched has – understandably – declined to enter into a debate as to the merits and shortcomings of its systems. In a press release dated 11 July 2006, issued in respect of a matter unrelated to these present applications, the UNHCR said that its Procedural Standards for Refugee Status Determination are —
19.The Director denies that he is aware that the UNHCR procedural standards are lacking in the manner alleged. In an affirmation dated 31 August 2007, Mr Choi Suet Yung, the Assistant Secretary for Security of the Security Bureau, has made the following assertions :
20.However, it is asserted on behalf of the applicants that – whether the Director acts in de facto recognition of the customary international law norm prohibiting refoulment of refugees or acts solely on humanitarian grounds – his delegation of responsibility to the UNHCR is unlawful :
21.It is further asserted that, under the Basic Law and common law, the failure of the Director to ensure that the Hong Kong Government itself conducts the screening of refugee claimants in unlawful because the Director may not surrender his discretionary powers to an independent body such as the UNHCR which is immune from judicial scrutiny and in that process allow Hong Kong, as a sovereign entity, to be bound by the decisions of that body. 22.The six applications, therefore, have one central purpose; namely, to obtain declarations to the effect that the Hong Kong Government, represented by the Director, is obliged under both customary international law and common law to screen refugee claimants and that this obligation is not one which can be surrendered to the UNHCR. The declaratory relief sought 23.Although there are slight differences in expression, I think it may fairly be said that the declaratory relief sought by the six applicants is to the following effect. 24.The first declaration sought is one that defines a ‘refugee’ under customary international law and states the minimum protection that must be afforded to such a person; namely, non-refoulment :
25.The second declaration sought is one that states the existence, under customary international law of the principle of non-refoulment :
26.The third declaration sought goes to the duties of the Director :
27.The fourth declaration sought is an alternative to the third declaration. It is to the following effect :
28.As I understand it, this alternate declaration is to be considered in the context of the challenge that, even if the Director acts only in the exercise of his discretion on humanitarian grounds, it is unlawful for him to surrender or delegate to the UNHCR the essential decision-making process which determines the manner of how he is to exercise that discretion. Determining only issues of Hong Kong domestic law. 29.At this stage, it is necessary to emphasise that, if this court is to grant declaratory relief, it will only do so if the Director is found to have any obligation under Hong Kong domestic law. For a statement of the principle, see, for example, Judicial Remedies in Public Law by Clive Lewis, Sweet & Maxwell, 3rd Ed, para.7-040 :
30.While therefore much of this judgment is focused on issues arising in public international law, its determinations are restricted to those legal obligations, if any, which I am satisfied have been received into our domestic law. The Convention Against Torture 31.While the Refugee Convention has not been extended to Hong Kong, the Convention Against Torture And Other Cruel, Inhuman Or Degrading Treatment or Punishment (‘the Convention Against Torture’) has been extended and therefore applies. The Convention Against Torture also incorporates the rule of non-refoulment. Art.(3) reads :
32.As to the meaning of ‘torture’, art.1(1) defines it as —
33.It will be seen that the concept of ‘persecution’ under the Refugee Convention – encompassing, as it does, all forms of hostile ill-treatment and discrimination – is broader than the concept of ‘torture’ as it is defined in the Convention Against Torture. Within the context of the two Conventions, it may be said that all torture is a form of persecution but not all persecution constitutes torture. Accordingly, two different determinations have to be made. As was said by the Court of Final Appeal in Secretary for Security v. Prabakar (2004) 7 HKCFAR 187, at 178 :
34.If a person claims the protection of non-refoulment under the Convention Against Torture, as that Convention has been extended to Hong Kong, the Government has adopted a policy of not deporting that person to a country where his fear of being tortured is considered to be well-founded. That policy involves the Government itself conducting a screening exercise and doing so in accordance with high standards of fairness. In Secretary for Security v. Prabakar, at 204, the Court of Final Appeal said that —
35.As it is, recent experience has shown that a great many refugee claimants also make claims under the Convention Against Torture. Indeed, it appears that an almost invariable practice has arisen of seeking protection under the two Conventions in sequence. By this I mean that the great majority of claimants first make a claim to the UNHCR to be recognised as a refugee and thereafter, if that fails, then proceed to make a claim direct to the Hong Kong Government under the Convention Against Torture. In short, an invariable two-stage process has arisen. 36.A consequence is that genuine claimants invariably face the spectre of two separate and uncertain investigations, having to recount the same history of misfortune under the scrutiny of two different investigative bodies. To the trauma of an uncertain future is added the wear-and-tear of delay, a delay (at this time) that often amounts to several years. False claimants, however, are able to abuse the system, exploiting the delay occasioned by two essentially independent investigations. If they are able to obtain their freedom by way of release on recognisance, they can then turn their hand to whatever holds out a profit and do so for an extended period of time. 37.But that being said, as I have said earlier, it must be recognised that the matters to be determined in a claim for refugee status are different from those to be determined in a claim made under the Convention Against Torture. One claim may fail while the other succeeds. 38.The six applicants, who assert that the Director, and not the UNHCR, is obliged to determine whether a person is to be recognised as a refugee, assert also that, as the fundamental human rights of a refugee claimant are at stake, the Director must adhere to the same ‘high standards of fairness’ in making this determination as he does in making a determination under the Convention Against Torture. In short, it is submitted that the requirements laid down in Prabakar must also apply in the screening all refugee claimants by the Hong Kong Government. The applicants 39.For present purposes, it is not necessary to outline in detail the history of each applicant’s claim. But some brief background should be given, if only to have a broader understanding of the very real complexities – geographical, social, political – that colour claims to be recognised as a refugee and the difficulties that are presented in their determination. C 40.The 1st applicant, C, was born in the Democratic Republic of the Congo, known as Zaire. He is now in mid-30s and is an ethnic Tutsi. According to the applicant, he was trained in Zaire as an army intelligence officer. He admits that the unit to which he was posted – known as DEMIAP – was engaged in human rights abuses. He says, however, that he had no way of leaving the unit without endangering his own life or that of his family. He therefore remained in the unit until about 1998 when he was himself arrested and detained. During his detention, he says, he was tortured. 41.When he was released, the applicant says that he fled to Rwanda where he applied for refugee status. However, when he was approached by members of the Rwandan military intelligence to work for them, he fled to Uganda. While in Uganda, he was able to obtain a visa for Korea and in February 2004 flew there via Hong Kong. According to the applicant, when he attempted to claim asylum in Korea, he was put on a plane and returned to Hong Kong. He arrived here in late February 2004. 42.The applicant’s claim for refugee status was rejected in March 2004. His appeal was dismissed a few days later. The claim was rejected under the provisions of art.1(F)(a) of the Convention on the basis that he was a person with respect to whom there were serious reasons for considering that, when he had been with DEMIAP in Zaire, he had committed crimes against humanity. 43.On the day that his appeal was dismissed by the UNHCR, the applicant made a claim under the Convention Against Torture. That claim, I understand, has not yet been finally determined. AK 44.The 2nd applicant was born in Guinea. It is possible that, when he arrived in Hong Kong, he may have been under 18 years of age and therefore a ‘child’ in Terms of the 1989 Convention on the Rights of the Child. The Convention – subject to reservation in respect of immigration matters – is extended to Hong Kong. 45.According to the 2nd applicant, his family was involved in opposition politics in Guinea. In the result, his father and other members of his family were killed by Government militia. The applicant says that he went into hiding until, with the help of a friend, he was able to fly out of Guinea. He asserts that he had no idea of the destination of the flight. 46.He remembers only that he stopped at various places before arriving in Hong Kong. He flew into Hong Kong in late December 2005 and was treated initially as a ‘stranded passenger’, it being recorded that his possessions had been lost or stolen en route to Hong Kong. While attempts were made for him to fly out of Hong Kong, he remained ‘air side’ at the airport. 47.In February 2005, the applicant was formally interviewed. The record of interview makes no suggestion that he claimed refugee status. According to the record of interview, he said that his parents were alive and living in Guinea and he had no siblings. He spoke of himself as a student. However, the applicant says that, as he spoke little English, he was unable to make himself fully understood. He said he had always attempted to claim refugee status. The applicant says that he had not lost his papers and possessions before coming to Hong Kong. They had been in a backpack which he had with him when he arrived at the airport but the backpack itself was lost or stolen. 48.The UNHCR investigated the applicant’s claim for refugee status but it was rejected within a matter of a month or so. The applicant appealed. In late 2006, his appeal was dismissed. As yet, the applicant has made no claim under the Convention Against Torture. KMF 49.The 3rd applicant was born in 1982 in the Republic of Congo, known as Congo-Brazzaville. He is in his mid-20s. According to the applicant, he and his family were the victims of ethnic unrest. He spent time in detention. His family was killed and he was forced into hiding in remote forest areas controlled by armed gangs. One gang, known as the Cobras, had some sort of official support. The applicant was pursued by this gang. He had to flee the country. He came to Hong Kong in November 2004, flying via Ethiopia and Thailand. 50.A few days after his arrival in Hong Kong, the applicant went to the offices of the UNHCR to claim refugee status. His claim was rejected. The applicant appealed but, in July 2006, that appeal was dismissed by the UNHCR. As yet, the applicant has not made a claim under the Torture Convention. VK 51.The 4th applicant, VK, was born in Sri Lanka in 1964 and is now in his 40s. He is a Tamil. According to the applicant, in the 1980s he was recruited to assist the Liberation Tigers of Talim Eelam in their armed struggle. For a time, he collected funds in Europe. In 1990, he was recognised by France as a refugee and granted asylum. The applicant says that in 1993 he returned to Sri Lanka ‘for family reasons’ and settled in a part of Sri Lanka away from the war zone. He married and had children. 52.However, he says he was arrested on a number of occasions, the last being in 2000 when he was tortured. Thereafter, he says that he fled Sri Lanka, arriving in Hong Kong in December 2000. A few days after his arrival, he sought to be recognised as a refugee by the UNHCR. While his claim was under investigation, he was able to bring his family to Hong Kong. 53.In or about March 2003, the applicant was informed by the UNHCR that his claim had been dismissed under art.1(F)(b) of the Convention on the basis that there was a reason to believe that he had committed a serious ‘non-political’ crime. The applicant appealed this decision but the appeal too was dismissed. 54.In March 2003, the applicant made a claim under the Torture Convention. I understand that the determination of that claim is still pending. BF 55.The 5th applicant was also born in the Republic of the Congo. He is in his mid 30s. According to the applicant, he followed an elder brother into opposition politics. Among other things, he distributed literature. Like his brother, however, the applicant says that he came under threat and was forced to flee. He says that initially he sought refuge in the neighbouring state of the Democratic Republic of Congo (Zaire) where he made an application to the UNHCR to be recognised as a refugee. However, according to the applicant, he still feared that he may be tracked down and, in the result, flew to Hong Kong in November 2003. 56.A few days after his arrival, he approached the offices of the UNHCR where he claimed refugee status. His claim was investigated but rejected in December 2004. His appeal was rejected in March of the following year. 57.The applicant made a claim under the Torture Convention but this was rejected in October 2006. He then appealed, his appeal being treated as a petition to the Chief Executive under art.48(13) of the Basic Law. That appeal, I understand, awaits determination. YAM 58.The 6th applicant was born in Togo in 1979 and is now in his late 20s. He says that he was the member of a political party, one of his functions being to act as a security guard. According to the applicant, after elections in 2005 there was widespread violence in Togo. The applicant says that soldiers of the Government hunted him. His wife was badly assaulted. The applicant says that he fled to the neighbouring state of Benin where he was sheltered as a refugee and where he made a claim to the UNHCR. However, it is his case that the refugee camp was attacked by locals before his claim could be processed. Personal papers were lost. The applicant says that he returned briefly to Togo to obtain an identity document and then fled Africa. 59.Having flown via Paris, he arrived in Hong Kong in October 2006 and contacted the UNHCR. His claim for refugee status was rejected by the UNHCR at the end of October 2006. His appeal was rejected in December of that same year. The applicant has made a claim under the Torture Convention which, I understand, awaits determination. The position of the UNHCR in respect of the present applications for judicial review 60.Although it chose not to be represented at the hearing, the senior member of the Hong Kong Sub-Office of the UNHCR did send a letter to the applicants’ solicitors on 23 November 2007. As to the conduct of the Hong Kong Government in respect of persons who claimed refugee status, the UNHCR representative was of the view that :
61.As to the degree of co-operation between the UNHCR and the Hong Kong Government in the process of determining refugee status, the letter said :
Customary international law : looking to the underlying principles. 62.In the sixteenth century, in his Commentaries on the Laws of England, Blackstone described public international law – he called it the ‘law of nations’ – as a “system of rules, deducible by natural reason, and established by universal consent” which ensured “the observance of justice and good faith” between states. Blackstone held that this law of nations was part of the law of the land; that is, part of the common law. 63.The authors of Oppenheim’s International Law (9th Edition) describe custom as ‘the oldest and the original source of international law’. 64.The statute of the International Court of Justice, the instrument which endows that court with jurisdiction to decide international law disputes, gives to the court (under art.38.1) the power to apply “international custom, as evidence of a general practice accepted as law”. 65.Academic writers are agreed that a rule of customary international law has three fundamental elements. First, the rule should be of a norm-creating character, capable therefore of forming the basis of a general rule of law. Second, there must be a settled and consistent practice by states; not by all states, but by states generally. Third, the practice must be followed because it is accepted as being legally obligatory. 66.In his speech in R. (European Roma Rights) v. Prague Immigration Officer [2005] 2 AC 1, at 35, Lord Bingham was of the view that the elements of customary international law have been accurately and succinctly summarised by the American Law Institute, Restatement of the Law, Foreign Relations Laws of the United States, 3d (1986), 102(2) and (3) in the following terms :
67.This summary, said Lord Bingham, was valuably supplemented by the following comment :
68.Accordingly, a settled and consistent practice among states, if it is to develop into a rule of customary international law, must be accompanied by conduct on the part of states – including those which are specially affected – acknowledging that the practice has acquired the force of law. 69.It is, however, open to individual states to ‘contract out’ of the process. In his text, Principles of Public International Law (6th Edition), at p.11, Ian Brownlie said :
70.In its 1950 judgment in the Asylum Case (Columbia/Peru) 1 CJ Reports (1950) 266, at 277, the International Court of Justice recognised that a rule of customary international law, even if proved, would not be binding on a state which had, by evidence of its actions, repudiated it :
71.On behalf of the Director, it is argued that Hong Kong has never recognised any form of legal obligation to adhere to a norm of international custom concerning the refoulment of refugees. In this regard, it is said, Hong Kong is no different from many other –indeed the majority – of jurisdictions in Asia. This persistent non-recognition is evident inter alia from the fact that the Refugee Convention has never been extended to Hong Kong, from other reservations in our laws and from numerous statements made by the Hong Kong Government. 72.But that being said, the fact that the Refugee Convention has never been extended to Hong Kong, while a relevant factor, is not decisive. I say that because a rule of customary international law maintains its independent existence even though that rule has partially or even exactly been codified in a treaty. 73.A rule of customary international law may exist before a treaty has been created or may emerge from the terms of a treaty. In Nicaragua v. United States of America (Case Concerning Military And Paramilitary Activities In And Against Nicaragua) ICJ Reports (1986) p.14, para.175, the International Court of Justice rejected the argument that it should refrain from applying rules of customary international law because they had been ‘subsumed’ or ‘supervened’ by those of international treaty law. It concluded :
74.Of particular relevance to the reservation applied to Hong Kong in respect of the Refugee Convention, the International Court of Justice went on to say :
75.In addition, what must be recognised is that a rule of customary international law may acquire such a special status that it becomes what is called a peremptory norm, one that is absolute and cannot be denied. Of importance in the present case is the almost universally recognised principle that, while a state has the freedom to ‘contract out’ of a rule of customary international law, no such freedom exists in respect of rules which have acquired the status of peremptory norms. Traditional concepts of sovereign consent do not apply to peremptory norms. 76.On behalf of the six applicants, it is contended, first, that there is a rule of customary international law prohibiting the refoulment of refugees and, second, that the rule has now acquired the status of a peremptory norm. The prohibition, it is said, is now a substantive norm of jus cogens. 77.The concept of jus cogens was first formally embodied in the text of the Vienna Convention on the Law of Treaties, art.53 of which concerns treaties conflicting with a peremptory norm of general international law :
78.Much of the impetus for the recognition of jus cogens arose out of the state-sponsored atrocities of the Second World War. In plain terms, jus cogens seeks to be a supreme law, one which, recognising fundamental human rights, denies the unlimited will of the state. Jus cogens recognises that some deeds are so wrong, so abhorrent, that no legitimate legal order could fail to proscribe them. Incorporation of customary international law into Hong Kong’s domestic law. 79.As I have said earlier, Blackstone, in his Commentaries on the Laws of England, recognised over 200 years ago that customary international law is part of the common law. But how is a rule of customary international law received into domestic law? Upon what basis may judges in Hong Kong act upon it? 80.In Trendtex Trading Corporation v. Central Bank of Nigeria [1977] 1 QB 529, at 553, Lord Denning MR came to the conclusion, now accepted, that international law came into the law of England by way of what is called the ‘doctrine of incorporation’, that doctrine holding that the rules of international law are incorporated into English law automatically and are considered to be part of English law unless they are in conflict with an Act of Parliament. 81.An important consequence of the doctrine was expressed by Lord Denning in the following terms :
82.The doctrine of incorporation, however, does acknowledge that a rule of customary international law cannot displace a domestic law. If it is in conflict with domestic law then it will not be received into our law. 83.The basic test appears to be one of consistency : if a rule of customary international law is consistent with domestic law, it will be incorporated. If it is inconsistent, it will not. In this respect, the Privy Council, in its judgment in Chung Chi Cheung v. R. [1939] AC 160, at 168, said :
84.However, when fundamental human rights are in issue, the test, it appears, is more stringent. In R. v. Secretary of State for the Home Department, ex parte Phansopkar [1976] 1 QB 606, at 626, the test was considered in the following terms :
Previous Hong Kong jurisprudence 85.This is not the first time that it has been argued before our courts that the customary international law principle of non-refoulment has been incorporated into Hong Kong’s domestic law. The issue arose some 18 years ago when it was considered by our Court of Appeal in Madam Lee Bun and Another v. Director of Immigration [1990] 2 HKLR 466. 86.The appellants had come into Hong Kong illegally from the Mainland. When arrested, they claimed that they had fled the Mainland for fear of political persecution and, if returned, were at risk of such persecution. In short, they claimed to be refugees in the manner defined in the Refugee Convention. The Director, however, issued orders for their removal. The validity of those orders was unsuccessfully challenged at first instance by way of an application for judicial review. On appeal, it was submitted that the Director, before coming to his decision to issue the removal orders, had been bound to give the appellants an opportunity to be heard and to rebut assertions adverse to them. The right to be heard, it was submitted, was given to the appellants by either the Refugee Convention or customary international law. The submission was rejected. 87.In respect of the Refugee Convention itself, Sir Derek Cons VP, giving the judgment of the Court, said :
88.In respect of customary international law, as I understand it, the court proceeded, on the basis that, assuming that there was a rule of international customary law prohibiting the refoulment of refugees, as certain authors proposed, that rule had not been incorporated into Hong Kong’s domestic law :
89.As to whether the rule against refoulment, assuming it to be such, had been received into Hong Kong law, the Court of Appeal took account of three factors :
90.In light of these three factors, said the Court —
91.In summary, it seems to me, that, while the Court of Appeal was prepared to acknowledge certain academic opinion that the prohibition against refoulment of refugees had matured into a rule of customary international law, the ratio of its judgment was that no such rule had been incorporated into Hong Kong law, the ‘legislative authority’ having repudiated any such rule. 92.During the course of submissions, it appeared to be argued that the judgment had proceeded on mistaken bases and was therefore per incuriam. I do not accept that. I am satisfied that the judgment, in so far as it spoke to the state of both international and domestic law in 1990, is binding on me. Is there a rule of customary international law prohibiting refoulment of refugees? 93.As I have said earlier, the Court of Appeal in Madam Lee Bun and Another did not engage itself in an enquiry into whether or not there was a rule of customary international law prohibiting refoulment. It did no more than acknowledge certain academic writings to that effect as part of the pathway to the ratio of its judgment. 94.In this regard, it is to be remembered that, while the importance of academic opinions have long been accepted in issues of international law, common law courts have recognised that such opinions alone, while they may point to the true state of the law, cannot make the law. As Cockburn CJ said in R. v. Keyn (1876) 2 Ex D 63, 202 :
95.In the circumstances, it seems to me that the two issues of whether there is a rule of customary international law against refoulment of refugees and, if so, whether that rule has become a peremptory norm, remain open. 96.In an article, entitled ‘Non-Refoulment Revised’ published in 2003 in the European Journal of Migration and Law, Vol.5, page 23, Nils Coleman, commences by writing :
97.As it is, the author concludes that while the principle of non-refoulment may have acquired the status of a rule of customary international law in some regions of the world, although not in Asia —
98.In short, it may be said that, certainly among academic writers, there has not been – and is not now – a universal concensus on the issue. 99.Prof. Roda Mushkat, until recently at the Hong Kong University, is recognised by Nils Coleman as a proponent for the existence of the principle of non-refoulment as a rule of customary international law : one of the majority. In her work, ‘One Country, Two International Legal Personalities: the Case of Hong Kong’ (Hong Kong University Press), Prof. Mushkat, concludes that the principle of non-refoulment contained in the Refugee Convention has received such universal recognition “in international legal instruments, numerous declarations in different international fora, successive resolutions of the UN General Assembly resolutions and the Executive Committee of the UNHCR, as well as in the laws and practices of states” that it has matured into a “norm of customary international law binding on all members of the international community”, whether or not they are, or have been, parties to the Refugee Convention. 100.Following from this, on behalf of the applicants, it is contended, to employ the words of the San Remo Declaration on the Principle of Non-Refoulment, that the rule may now be regarded as ‘the cornerstone of international refugee law’. 101.The San Remo Declaration was made on the occasion of the fiftieth anniversary of the Refugee Convention. It arose out of a ‘round table’ meeting of members of the International Institute of Humanitarian Law, the UNHCR and a panel of experts on international law. In part, the Declaration reads :
102.During the course of the hearing, concerns were raised by Mr Anderson Chow SC, leading counsel for the Director, that the principle of non-refoulment had not yet become sufficiently precise to transcend a general aspiration or understanding and to be part of the law as it exists (the lex lata) of all states. The San Remo Declaration, however, meets that concern in the following terms :
103.Of particular authority, in my view, is an opinion completed in 2001 by Sir Elihu Lauterpacht QC and Daniel Bethlehem QC (both noted scholars in the field of international law) entitled : The Scope and Content of the Principle of Non-Refoulment. The authors of the opinion conclude that “non-refoulment must be regarded as a principle of customary international law”. Reduced to its essentials, they say that the content of the principle may be expressed as follows :
104.In the same year; that is, in 2001, a ‘round table’ of some 35 international law experts, meeting at the Lauterpacht Research Centre for International Law at the University of Cambridge, concluded that non-refoulment is a principle of customary international law. The experts went on to express the broad concensus that —
105.In his speech in R. (European Roma Rights) v. Prague Immigration Officer,supra, para.26, Lord Bingham came to a more cautious conclusion when he observed that :
106.But, as I have indicated earlier, the prevailing opinion is not universally accepted. There exists a body of academic opinion to the effect that – at this time – there is insufficient evidence to justify the assertion that the duty to avoid refoulment of refugees has evolved beyond the scope of the Refugee Convention. 107.Kay Hailbronner, in an article entitled Non-Refoulment and ‘Humanitarian’ Refugees : Customary International Law or Wishful Legal Thinking (1986) 26:4 Virginia Journal of International Law 857, speaks of the principle of non-refoulment as only “universal customary law in the making”, having matured into customary law only in the regions of Western Europe, the American Continent and Africa – but not in Asia :
108.Nils Coleman too gives weight to the same view; namely, that, at best, the principle of non-refoulment has evolved into a rule of regional customary international law. He takes issue with the rule being inferred on the basis that it has been accepted by a majority of specially affected states worldwide. That, he says, goes against the fabric of customary law which arises out of “consensus in an international community where states participate as equals in forming customary law”. He is also concerned at the “contradictory situation of declaring the principle of non-refoulement universal customary international law while several main refugee areas have a history of negative practice and still do not adhere to the principle”. 109.In this regard it is to be noted that, as at February 2007, the UNHCR reported that the following states in Asia had not acceded to the Refugee Convention (19 in all, 20 if the Territory of Hong Kong is included) :
110.In his text, The Rights of Refugees Under International Law, Cambridge University Press, 2005, James Hathaway, at p.364, while acknowledging the many official pronouncements of the UNHCR and other international bodies and gatherings of experts, is of the view that —
111.Hathaway continues with a note of caution to the effect that there is —
112.The author concludes with a direct statement that —
113.I have taken note of the dissenting voices. I have reminded myself of the dangers of legal wishful thinking : considering it right that it should be so and therefore making it so. On balance, however, it seems to me that today it must be recognised that the principle of non-refoulment as it applies to refugees has grown beyond the confines of the Refugee Convention and has matured into a universal norm of customary international law. 114.I recognise that a good many states have not acceded to the Refugee Convention itself and, by their actions, have been unambiguous in their repudiation of the norm as it has evolved in customary international law. But that being said, the International Court of Justice, the primary judicial body of the United Nations, has emphasised that universal adherence is not required for a rule of customary international law to come into being. In Nicaragua v. United States of America (Case Concerning Military And Paramilitary Activities In And Against Nicaragua) ICJ Reports (1986) p.14, para.186, the Court put it in the following terms :
115.In my judgment, doing the best I can in an area where there are strongly conflicting opinions, it seems to me, on balance, that today states generally do adhere to the norm and do so out of recognition that it creates an obligation in law. Most states that are specially affected with refugee-related problems recognise the binding effect of the norm. 116.In coming to my finding, I have also taken into account the present recognition by states generally that fundamental humanitarian considerations have themselves evolved into a humanitarian law, that law linking and, to a greater or lesser degree, binding the conduct of states. Has the rule against refoulment acquired the status of a peremptory norm? 117.On behalf of the applicants, considerable reliance is placed on a pronouncement of the UNHCR Executive Committee made in 1996 that the “principle of non-refoulment is not subject to derogation” : that it has therefore acquired the status of a norm of jus cogens. The full text of the Executive Committee conclusion is as follows :
118.I note, however, that the conclusion was made by the Executive Committee (consisting then of only 51 members) against the backdrop of “widespread violations of the principle of non-refoulment”. 119.In an article published in 2001 in the International Journal of Refugee Law, Vol.13, number 4, entitled The Jus Cogens Nature of Non-Refoulment, Jean Allain writes that the rule against refoulment has acquired the status of a peremptory norm. 120.He commences, however, from a basis far more certain than that of many other academic writers. It is clear, he says, that the norm prohibiting refoulment is part of customary international law, the only uncertainty being whether the norm has achieved the status of jus cogens. 121.In approaching the question, the author speaks of the need to consider the current practice of states but, on my reading, his underlying rationale appears to be why it is so important that the principle of non-refoulment should have its enhanced status; the desired end result therefore colouring present reality. 122.In this regard, it is to be noted that Nils Coleman, in his article, Non-Refoulment Revised, page 46, said the following :
123.What is telling, in my view, is that the opinion – The Scope and Content of the Principle of Non-Refoulment – completed in 2001 by Sir Elihu Lauterpacht and Daniel Bethlehem makes no assertion that the rule against refoulment has attained the status of a peremptory norm. Nor, to my understanding, did the subsequent ‘round table’ meeting of some 35 international law experts. 124.In his article, Adjudicating Jus Cogens (1994) 13 Wisconsin International Law Journal, Christopher Ford, at p.3, said the following of the rule :
125.If the doctrinal origins of jus cogens are uncertain it appears to me that its substantive content is equally open to debate. 126.The prohibition against genocide – genocide being a denial of the right of existence of entire human groups – has been accepted with minimum controversy as a peremptory norm. 127.In England certainly, the prohibition against systematic torture has also been accepted as a peremptory norm. See, for example, Jones v. The Ministry of the Interior, Al-Mamlaka Al-Arabiya [2005] 2 WLR 808, per Mance LJ, para.31 :
128.The prohibition against slavery too appears to have been recognised as a peremptory norm with little controversy. 129.But, as Christopher Ford has expressed it, other candidates for peremptory norm status have been propounded by jurists and publicists alike with “varying degrees of acceptance.” Proposed norms, he said, have included “the prohibition of racial discrimination, the illegality of mass murder or imprisonment, freedom of the seas, the prohibition of piracy, the protection of basic human rights, the prohibition upon non-genocidal crimes against humanity” and “the non-refoulement of refugees”. 130.In this last respect, the ‘Cartagena Declaration on Refugees’ adopted in 1984 by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama declared that the principle of non-refoulment was a rule of jus cogens. Paragraph 5 of the Declaration reads :
131.However, as Goodwin-Gill and McAdam, the authors of The Refugee In International Law, Oxford University Press, 3rd Ed., page 38, say of this declaration :
132.The Declaration, therefore, having arisen out of a particular crisis in one part of the world, seeks to elevate the rule against refoulment not as it applies to refugees who fear persecution if they are refouled but to refugees of all kinds, to those I have described, as ‘humanitarian refugees’. That, in my view, is not simply the elevation of an existing norm, it is the expansion of that norm into one that is new, a norm of far greater scope than the Refugee Convention itself. 133.In recognition of its humanitarian ideal, it may be said that the principle of non-refoulment should today be incapable of derogation or repudiation. But that, to my understanding, is not the basis upon which a norm of jus cogens is formed. One must look to the practice of states generally and why it is that they adhere to the practice. 134.Torture has been recognised as being so abhorrent that refoulment is not subject to exception. Even a person who was a principal torturer himself, while he may be brought to justice by other means, may not be refouled if it places him at risk of the very torture he once practised. Refugee law, however, is subject to exceptions. Issues, for example, going to the mass influx of refugees pose profound problems. 135.While, on balance, I am drawn to the conclusion that the rule against refoulment is a rule of customary international law, I think it goes too far to hold – at this time – that the rule has acquired the status of a peremptory norm. Put another way, the ideal does not accord with present reality and, if the ideal is to prevail, it may bring the norm itself into disrepute. 136.The issue that next falls for consideration is whether the rule against refoulment – being a norm of customary international law but not a peremptory norm – has been received into Hong Kong’s domestic law. 137.On behalf of the Director, it is argued that the rule, by consistent conduct, has most clearly been repudiated. Has Hong Kong repudiated the rule against refoulment? 138.In its judgment in Madam Lee Bun and Another, given in 1990, the Court of Appeal did not conclude that Hong Kong domestic law was merely inconsistent with the customary international law rule against refoulment. The finding of the court was more specific. It said :
139.More than that, when considering principles of natural justice, the court went on to say that such principles could not be used “to contradict the clear intention of the legislature”. 140.On my reading, put plainly, the Court of Appeal came to a determination that Hong Kong; that is, its Government and Legislature, had a firm and purposive policy that persons claiming political persecution – refugees – should not be accorded any special rights. 141.Equally, I think, it may be inferred from the judgment that humanitarian or compassionate issues were to be left to the discretion of the Director in his management of Hong Kong’s scheme of immigration. 142.I am bound to say that, if the Court of Appeal had made no such judgment and if the matter had come before me as an entirely new issue, I would have had little difficulty in coming to the same conclusion. 143.In its judgment in Madam Lee Bun and Another, the Court of Appeal took into account the reservation which was applied when the International Covenant on Civil and Political Rights was extended to Hong Kong : see para.89 (iii) of this judgment. There have, however, been other reservations of a similar kind. 144.The 1989 Convention on the Rights of the Child has been extended to Hong Kong. Art.22(1) of the Convention reads :
145.The Convention, however, remains subject to the following reservation :
146.The legislation that is applied is the Immigration Ordinance. That statute, however, does not contain any special provision regarding refugee claimants in general or persons under 18 who claim the same status. Accordingly, both adult and child claimants are subject to the general provisions of the Ordinance, including provisions which go to removal and deportation. 147.As I have indicated earlier, the applicant, AK, may have been under the age of 18 when he came to Hong Kong. But, as I have said, in respect of immigration matters, the Convention on the Rights of the Child has not been incorporated into Hong Kong’s domestic law. In this regard, in an earlier judgment – Chan To Foon v. Director of Immigration [2001] 3 HKLRD 109, at 121 – I said :
148.Mr Philip Dykes SC, leading counsel for the applicants submitted that the real issue is that Hong Kong has not enacted laws to specifically exclude incorporation of the customary law principle of refoulment. What matters, he says, is whether Hong Kong, not having legislated to accommodate the rule, has in fact legislated against it and created a law that specially and specifically empowers an immigration official to refoul refugees and refugee claimants on account of their status. Such a law, he says, would be within the competence of the legislature. But Hong Kong has not enacted such a law. Nor has it stated that it will use existing immigration powers to refoul refugees and refugee claimants. That is consistent, says Mr Dykes, with the principle that statutory powers are to be used in a manner that conforms with international law and, as such, the existing statutory powers should be construed in such a way as to accommodate incorporation of the rule. 149.I am unable to accept those submissions. Cutting through the ‘Gordian Knot’, the answer, it seems to me, is plain. When all matters are taken in context – the refusal to accede to the Refugee Convention, the refusal to enlarge the terms of the Immigration Ordinance, the making of specific reservations concerning immigration and the often-stated policy against asylum – Hong Kong’s refusal to pass legislation incorporating the rule is equivalent to passing legislation for the purpose of excluding it. Nor, in my view, for reasons to which I shall turn shortly, can it be said that the Director employs his relevant statutory powers in a manner that amounts to acceptance of the rule of customary international law. The Director may exercise his powers with basic humanitarian values in mind but that is a different and distinct basis from the one Mr Dykes proposes. 150.Has the Government’s manifest policy changed since 1990? Nothing has been put before me to suggest any such change. To my understanding, it remains equally clear and equally firm. 151.On behalf of the Director, it is said that the Hong Kong Government, because of the unique circumstances that apply to it, has been forced to operate a restrictive policy of immigration and, as an integral part of that policy, has consistently refused to be bound by any rule or principle of international law concerning non-refoulment of refugees. In an affirmation dated 28 February 2007, Mr Chu King Man, the Principal Assistant Secretary (Security) of the Security Bureau has stated the position of the Government in the following terms :
152.That statement mirrors a number of public statements made by the Hong Kong Government over the past 12 years. 153.In a debate in the Legislative Council in February 1996, the Secretary for Security stated the Government position that, “with the exception of illegal entrants of Vietnamese origin, there is no other official policy or legislation in Hong Kong law governing the screening of refugees”. The Secretary went on to say that it was a general policy, as regards illegal entrants not of Vietnamese origin, to “repatriate them to their country of origin unless there are exceptional humanitarian or compassionate grounds on which the Director of Immigration may exercise his discretionary power to allow them to stay in Hong Kong”. 154.As I have said earlier, the humanitarian crisis presented by the mass influx of Vietnamese boat people in the last 25 years or so of the twentieth century was the only occasion brought to my attention when Hong Kong put legislative measures into place allowing for a form of asylum and for a process of screening of refugee claimants. Those measures, for all practical purposes, fell away in 1998. 155.When legislation was passed in respect of the Vietnamese boat people, it presented an opportunity, if there had been any desire to take it, to widen the provisions to include refugee claimants of all kinds. But the legislation remained precise and restricted and, as it transpired, temporary. 156.I have said earlier that there has been no change in policy. By way of illustration, in January 1999, in answer to a question asked by a Legislative Councillor concerning requests for political asylum, the Government gave the following written response :
157.In a paper prepared in April 2006 concerning welfare assistance for asylum seekers, the Government said the following to the Legislative Council :
158.By way of a collateral observation, it should be said that our courts have long recognised that the Hong Kong Government has been unable to liberalise its immigration regime to the extent of many other jurisdictions. In Ngo Thi Minh Huong (An Infant) v. The Director of Immigration (2000–01) 9 HKPLR 186, at 192, Yeung J, as he then was, echoed numerous other judgments when he said :
159.Yeung J’s pronouncement was made in a judgment dismissing an application for judicial review made on behalf of a female child, some 11 years of age, who, being of Vietnamese nationality, had sought recognition as a refugee. In that respect, Yeung J said :
160.Has there nevertheless, by means of a consistent exercise of the Director’s discretion not to repatriate persons granted refugee status by the UNHCR, been created a de facto recognition of the customary international law rule against refoulment and an adherence to that rule? 161.It is the Director’s position that, although he has in fact never returned a recognised refugee to a country where there was a real risk he would be persecuted, this has never amounted to a de facto recognition by him of any binding rule of customary international law prohibiting the refoulment of refugees. To the contrary, it is said on behalf of the Director that the Hong Kong Government has publicly and consistently refused to be bound by any such rule. 162.The Director’s position may be summarised as follows :
163.In my judgment, there is force in these contentions. The distinction drawn, while perhaps fine on one view, is nevertheless a true distinction. There is simply no evidence that the Director has fashioned the exercise of his discretion so as to give de facto recognition to any rule of customary international law prohibiting refoulment of refugees. To the contrary, it appears to me that the Hong Kong Government has purposefully distanced itself from the process of determining who is a refugee and thereafter where best that refugee may be settled in the world in order specifically to avoid compromising its position that it has no policy of granting political asylum. 164.More than that, I believe it would be jurisprudentially unwise to hold that, because the Director’s exercise of discretion, based solely on respect for humanitarian principles has – to this date – provided the same result as the rule against refoulment in customary international law, it must be taken as an indirect acceptance of, and adherence to, that rule. As Yeung J expressed it Ngo Thi Minh Huong (An Infant v. The Director of Immigration, page 195 :
165.I have at all times taken into account that a claim for political asylum is recognised as a basic human right. Art.14(1) of the Universal Declaration of Human Rights, adopted in 1948 by the General Assembly of the United Nations, declares – as a proclamation of ethical values, rather than legal norms –that :
166.But such rights must yield to the express requirements of domestic laws and, as I have said earlier, I am satisfied that such laws, both by what they say and what they omit to say, create no ambiguity. 167.In summary, I am satisfied that the rule of customary international law prohibiting refoulment of refugees has not been incorporated into Hong Kong domestic law. 168.If, however, I am wrong in that regard, if such a rule has been incorporated into our domestic law, it is necessary to give some consideration to the issue that lies at the heart of these applications for judicial review; namely, whether the Director is obliged, by reason of the rule, to ensure that the Hong Kong Government itself determines all claims for refugee status. Is the Hong Kong Government under a legal obligation to screen all refugee claimants? 169.Mr Anderson Chow, for the respondents, submitted that, even if this court found that a rule of customary international law prohibiting refoulment of refugees had been received into the domestic law of Hong Kong, it would be ‘a quantum leap’ to contend that the rule imposed a duty on the Government to itself conduct an assessment of all refugee claims. 170.What is plain, I believe, is that the customary law rule against refoulment does not encompass any specific procedural requirement concerning the manner in which refugee status is to be determined. Indeed, the Refugee Convention itself lays down no specific procedural requirements. That being the case, it is difficult to see how it can be said that the rule of customary international law which has evolved out of the Refugee Convention has had incorporated into itself – by the consistent and general practice of states – some set procedure. 171.For the fact is that there is no consistent and general procedural practice adhered to by states. Practices differ greatly. This perhaps explains why for many years the annual General Assembly resolution on the UNHCR has called for asylum seekers to have access to ‘fair and efficient procedures’ for the assessment of their status. It may also explain why in 1977 the Executive Committee of the UNHCR expressed the hope that all parties to the Refugee Convention would adopt such procedures and would also entertain UNHCR participation in those procedures. In a very general sense, basic procedural requirements were recommended by the Committee. But, as the authors of The Refugee In International Law, page 533, observe :
172.In summary, neither the Refugee Convention nor the rule of customary international law prohibiting refoulment prescribe set procedures. It may be inferred, of course, that such procedures should be fair and efficient but I am unable to read that as somehow giving rise to a binding rule that it must be national authorities which ensure fairness and efficiency rather than the UNHCR. 173.On behalf of the applicants it is argued that the mandate of the UNHCR was never intended to encompass responsibility for determining refugee status. I have no difficulty in accepting that under the Refugee Convention determination of refugee status is primarily a responsibility of national authorities and not the UNHCR. But that being said, whatever the intentions of those who drafted the constitution of the UNHCR, over the years the UNHCR has taken on a broad range of roles in forwarding the process by which, at the national level, the true status of refugee claimants is determined. This ranges from taking on full responsibility for the decision-making process to merely giving advice to domestic authorities. 174.A material observation, in my view, is that not even all states which have acceded to the Refugee Convention have created mechanisms for the screening of refugee claimants. In the result, four states, including the Peoples’ Republic of China (which sits on the Executive Committee) leave the screening process to the UNHCR. The other three are Afghanistan, Cambodia and Turkmenistan. 175.As to the role of the UNHCR, the authors of The Refugee In International Law make the following observations :
176.The UNHCR itself, in a letter dated 18 May 2004 prepared for certain earlier court proceedings in Hong Kong, said the following :
177.A consideration of the matters I have just canvassed makes it plain that parties to the Refugee Convention are under no treaty obligation to adopt specific procedures in determining refugee status. There may be recommendations issued by the Executive Committee but, as sensible as they may be in seeking a fair and efficient screening procedure, they are not binding. In light of that, I fail to see how it can be said that, under the rule of customary international law prohibiting refoulment, a rule which has its roots in the Refugee Convention, there is nevertheless mandated a set of binding procedures. 178.As the UNHCR has itself acknowledged, there may be occasions when national authorities are unwilling or unable to make refugee status determinations and in such instances the fairest and most efficient procedure may be for the UNHCR itself to take on the responsibility. It is to be remembered that it is a responsibility which, as an international organisation, the UNHCR is particularly well equipped to discharge. Is the Director, in considering whether to exercise his discretion on humanitarian or compassionate, obliged first to screen refugee claimants? 179.At the outset, what must be underscored is that Hong Kong has no asylum policy. An illegal entrant, whether he claims refugee status or not, while he may make submissions in mitigation of his circumstances, has no right to a hearing subject to procedural rules of fairness. If an illegal entrant is given permission to remain in Hong Kong it is because the Director has exercised an administrative discretion. The Legislature has given to the Director the exclusive discretionary power, one that is not subject to specific statutory restrictions, to decide whether a person illegally in Hong Kong may remain and, if so, for how long and under what conditions. 180.As Litton JA, as he then was, observed in R. v. Director of Immigration, ex parte Chan Heung Mui [1993] 3 HKPLR 533, at 547 :
181.The Director’s discretionary power is broad. As Litton JA said in the judgment to which I have just referred :
182.If the Director fails to exercise his discretionary powers in furtherance of the Immigration Ordinance then he acts outside of his powers. But the Ordinance makes no provision, substantive or procedural, concerning refugee claimants generally. 183.Equally, the Director must exercise his discretionary powers in the public interest; that is , the public interest of Hong Kong. It seems to me that, in an open, democratic society such as Hong Kong, unless there are pressing reasons to the contrary, the Director must therefore take into account, in the exercise of his discretion, humanitarian or compassionate factors that apply to any individual person, or group of persons, who fall under his jurisdiction. 184.But it is for the Director to best determine how to obtain relevant information so that he can exercise his discretion and for him to determine what weight, if any, to give to that information. 185.Equally, it must be the case that the Director has the authority, in the exercise of his discretionary power, to seek assistance in order to identify whether humanitarian or compassionate circumstances do or do not exist. The determination of which person, or which body of persons, can best render that assistance is an integral part of the exercise of his discretionary power. 186.Equally, it must be the case that the Director, if he is faced with an on-going problem, has the authority to develop a policy as to the approach which he will adopt in the generality of cases. 187.Mr Dykes, however, makes the point that the Director cannot simply surrender his discretionary powers. Under the statute they are exclusively his. Mr Dykes pitches his submission at the highest level. There is no provision in the Basic Law, he says, permitting a body independent of Hong Kong to make decisions binding on Hong Kong. The UNHCR may assist in determining who is to be recognized as a refugee but it may not receive delegation of that entire responsibility, one which is – in all reality – binding on the Director and therefore on Hong Kong as a sovereign entity. 188.In my judgment, however, it is not tenable to suggest that the Director has delegated his discretionary powers to the UNHCR to the extent that the determinations of the UNHCR concerning recognition of refugee status are binding on the Director and, through him, on the Hong Kong Government. There is no evidence that the Director has fettered his discretion in such manner. There is certainly no evidence that the Director has committed himself to be bound by all future determinations made by the UNHCR. The fact that the Director has seen fit up to this date to abide by determinations made by the UNHCR is no evidence that he has bound himself to abide by all future determinations. 189.But he may not rely on UNHCR determinations, submits Mr Dykes, when the UNHCR itself is immune from judicial scrutiny by our courts. Immunity from judicial scrutiny means that the UNHCR may make determinations that offend the most basic tenets of fairness or are irrational and yet not be held accountable. 190.If Mr Dykes is correct in his submission, it means that the Director may not lawfully seek the assistance of any international body that is not subject to the supervisory jurisdiction of the Hong Kong courts in respect of any matter that concerns the exercise of his discretionary powers : the International Red Cross, international labour organizations and such bodies. That, in my view, would lead to an absurdity. 191.In any event, the UNHCR is not unaccountable. It is accountable to the Director himself. If in any particular case, the Director has reason to believe that he should not act upon a determination made by the UNHCR, whether favourable or unfavourable to a claimant, he does not have to act upon it. He can ask that the determination be reconsidered, he can ignore it. He has many options open to him. 192.Is it then unreasonable, as a matter of policy, to rely in the generality of cases on the findings of the UNHCR when those findings are not supported by a full statement of reasons? If the Director was exercising a judicial or quasi-judicial discretion there may be some strength in the contention. But he is not. 193.Earlier in this judgment, I have referred to assertions made on behalf of the Director that the UNHCR is considered to be the international organisation possessing “the relevant experience, knowledge and network” to make refugee status determinations. The Director is aware of the experience of the UNHCR in these matters, he is aware that it works according to tested procedures, he is aware that it has knowledge of ‘country conditions’. More than that, the Executive Committee of the UNHCR has asked states to entertain UNHCR participation in procedures for determining refugee status. I can find no basis for contending that the Director has acted irrationally in relying on the findings of the UNHCR simply because those findings are not supported by detailed reasons. A summary of my findings 194.The determinations made in this judgment may be summarised as follows :
My orders 195.In light of these findings, the various forms of relief sought by the six applicants are refused. 196.In respect of costs, I see no reason why costs should not follow the event and be awarded to the respondents. There will be an order nisi to that effect. There will also be an order for legal aid taxation.
Mr Philip Dykes, SC and Mr Hectar Pun, instructed by Messrs Barnes & Daly, assigned by Director of Legal Aid, for Applicants in all cases Mr Anderson Chow, SC and Ms Grace Chow, instructed by Department of Justice, for Respondents in all cases Appeal dismissed: see CACV132/2008 Dated 17 August 2009 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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