C, AK, KMF, VK, BF and YAM v Director of Immigration and Another

Judgement Year:  2008
Citation:  HCAL 132/2006 and 1, 43, 44, 48 and 82/2007

The applicants came to Hong Kong to seek protection from persecution in his country or place of residence. They sought to be recognized in Hong Kong as refugees. The Refugee Convention of 1951 (taken together with the 1967 Refugee Protocol) does not apply to Hong Kong. Under the present system, in which the Hong Kong Sub-Office of the UN High Commissioner for Refugees assesses applications for refugee status, the applicants had their claims rejected and their appeals dismissed.

The applicants argued that the Hong Kong government had a legal obligation under customary international law not to remove or return a refugee (non-refoulement) to a country where he (or she) would face persecution. They further argued that it followed logically and necessarily from such an obligation that the government itself must assess whether a claimant is a refugee.

Hartmann J held that while non-refoulement had become part of customary international law, it had not developed into a peremptory norm (a principle of international law which overrides other laws). Since the Hong Kong government had ‘consistently refused to be bound’ by such a concept, and Hong Kong’s domestic laws, specifically the Immigration Ordinance, are inconsistent with the concept, non-refoulement had not been incorporated into domestic law and hence did not apply in Hong Kong.

Hartmann J also rejected the applicants’ submission that the Director of Immigration’s regular exercise of his discretion not to remove refugees recognized by the UNHCR constituted de facto recognition of non-refoulement.

In addition, Hartmann J held that, even if the Hong Kong government was bound by the rule of non-refoulement, the rule did not require a set of specific procedures to determine who should not be removed, since the Refugee Convention from which it developed does not mandate a set of specific procedures. He added obiter that the UNHCR was ‘well equipped’ to perform refugee status determinations. Moreover, he rejected the submission that the Director of Immigration was surrendering his discretionary powers by relying on UNHCR determinations to decide whether to grant leave to remain based on humanitarian grounds.

(The applicants subsequently appealed to the Court of Appeal: see our summary of the judgment in CACV 132-137/2008.)