Read the full judgment text of HCAL 10/2010, HCAL 73/2010, HCAL 75/2010, HCAL 81/2010, HCAL 83/2010 on BabelCite. This Court of First Instance judgment was delivered on 6 January 2011 before Andrew Cheung J.
Constitutional and administrative law – judicial review – immigration – mandated refugees and screened-in torture claimant – right to work – prohibition on employment – so-called blanket policy – anxious scrutiny approach – fundamental rights directly enforceable – Hong Kong Bill of Rights Ordinance (Cap 383) s.11 – ICCPR – ICESCR art 6 – UK reservation on place of birth or residence – CAT art 16 – Basic Law arts 33, 39(1), 41, 154(2) – right against cruel, inhuman or degrading treatment – inherent human dignity – vulnerability of refugees and torture claimants – section 36 Immigration Ordinance recognizances – deportation order – post-screening management policy. Facts – MA (Pakistani), GA (Burundian), FI (Sri Lankan) and JA (Pakistani) were mandated refugees; PA (Sri Lankan) was the first successful screened-in torture claimant under the CAT. All five were stranded in Hong Kong for prolonged periods, with little prospect of resettlement or departure, and were prohibited from working. MA and GA's express requests for permission to work were refused by a single form letter; PA's request was still under consideration; FI and JA had made no specific requests; and JA faced a deportation order following three criminal convictions. Main issues and holdings – (1) Section 11 of the Hong Kong Bill of Rights Ordinance catches the applicants' cases because the right or ability to take up employment is a facet of their 'stay' in Hong Kong governed by the Immigration Ordinance (Cap 115), so the Hong Kong Bill of Rights / ICCPR rights relied on are not directly enforceable. (2) Reliance on article 6 of the ICESCR is barred by the UK Government's reservation, applied to Hong Kong under article 39(1) of the Basic Law, permitting restrictions to safeguard employment opportunities of the local workforce. (3) The CAT is not incorporated into domestic law and provides no directly enforceable right under article 16. (4) The relevant articles of the Basic Law (arts 28, 29, 30, 33, 37, 41) do not give mandated refugees and screened-in torture claimants the right to take up employment; the theme of continuity and article 154(2) reinforce the immigration-control framework. (5) The so-called blanket policy is not irrational or unreasonable even under the anxious scrutiny approach, because it admits of discretionary exceptions and is justified by Hong Kong's unique immigration context, the need to protect the local workforce, and concerns over the 'pulling effect' on illegal immigration. (6) However, the individual refusals of MA's and GA's requests for permission to work are quashed for failure to consider individual circumstances and relevant considerations, in light of the applicants' vulnerability as genuine refugees stranded for many years. (7) The challenges to the section 36 recognizances and to JA's deportation order are rejected because removal is not wholly impossible and the Director/Secretary was entitled to act as he did. (8) The Director is not legally required to have a separate post-screening management policy, but he must apply his existing discretion conscientiously to individual cases such as PA's outstanding request. Outcome and consequential orders – Certiorari granted in HCAL 10/2010 and HCAL 73/2010 to quash the refusals in respect of MA and GA, with the Director to reconsider their requests afresh in light of the latest information; all other applications dismissed. Costs in HCAL 75/2010, 81/2010 and 83/2010 ordered to be paid by the respective applicants to the respondent (taxed if not agreed), with a certificate for two counsel; no order as to costs in HCAL 10/2010 and 73/2010; legal aid taxation of the applicants' own costs in those two cases.
Legal issues: Applicability of section 11 of the Hong Kong Bill of Rights Ordinance to mandated refugees and screened-in torture claimants · Reliance on article 6 of the ICESCR and the UK article 6 reservation · Whether the Director's so-called blanket policy is irrational or unreasonable in the public law sense · Lawfulness of individual refusals of MA's and GA's requests for permission to work · Lawfulness of the recognizances required of the applicants under section 36 of the Immigration Ordinance · Lawfulness of the deportation order against JA · Whether the Director is required to have an accessible policy on post-screening management of successful torture claimants
Outcome: Orders of certiorari granted in HCAL 10/2010 and HCAL 73/2010 to quash the Director's refusals of MA's and GA's respective requests for permission to work; the Director to reconsider those requests afresh. All other applications for judicial review dismissed. Costs in HCAL 75/2010, 81/2010 and 83/2010 ordered against the applicants in those cases; no order as to costs in HCAL 10/2010 and 73/2010.
Cites 11 cases