C and Others v. Director of Immigration and Another

CACV 132,134 &136/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 132, 134 & 136 OF 2008

(ON APPEAL FROM HCAL NO. 132 OF 2006 and

HCAL NOS. 43 & 48 OF 2007)

(HEARD TOGETHER)

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Before: Hon Cheung CJHC, Yuen JA and Lam J in Court

Date of hearing and judgment: 14 December 2011

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.This is an application for leave to appeal to the Court of Final Appeal against our judgment dated 21 July 2011.

2.Having considered submissions made by leading counsel for the Applicant and for the Respondents, we take the view that the appeal raises the following issues of great general or public importance for which leave should be granted under s.22(1)(b) HKCFAO, cap. 484:

(1)  Is non-refoulement of refugees a peremptory norm of customary international law (jus cogens)?

(2)  Regardless of whether it is a peremptory norm or simply customary international law, has the norm/law of non-refoulement of refugees been validly excluded in the HKSAR by domestic legislation?

(3)  If it has not been validly excluded, is it a norm/law which requires a duty of independent inquiry by the HKSAR Government into whether a claimant is a refugee, which duty is not delegable to the UNHCR?

3.We do not consider that other questions raised involve issues of great general or public importance or for which leave should be granted under the “or otherwise” limb.

Ms Gladys Li SC, instructed by Barnes & Daly, assigned by the Director of Legal Aid, for the Applicants.

Mr Anderson Chow SC and Ms Grace Chow, instructed by Department of Justice, for the Respondents in all cases