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

Judgement Year:  2011
Citation:  CACV 132-137/2008

The appellants appealed against Hartmann J’s judgment (HCAL 132/2006 and 1, 43, 44, 48 and 82/2007: see our summary of the judgment) which dismissed their applications for judicial review. Their appeal was dismissed by the Court of Appeal.

Delivering the leading judgment, with which the other judges unreservedly agreed, Yuen JA agreed with the learned judge at first instance that the concept of non-refoulement had become a part of customary international law, and also that it had not developed into a peremptory norm. Among other reasons, Yuen JA reasoned that since the non-refoulement of persons facing a risk of torture had been held by the Supreme Court of New Zealand not to be a peremptory norm, it necessarily followed that non-refoulement of refugees, who faced a ‘lesser threat’ than torture, was not a peremptory norm.

Further, Yuen JA held that Hartmann J was correct in holding that Hong Kong domestic law overrode the non-refoulement obligation in customary international law. The Immigration Ordinance gave an ‘unfettered discretion’ to the Director of Immigration. Her Ladyship rejected the appellants’ argument that the principle of legality applied (that is, that general and ambiguous statutory provisions must be interpreted in a way consistent with legal rights). In this case there was no right in danger of being infringed, since the appellants had no constitutional right to remain in Hong Kong, and the provisions in the Ordinance were unambiguous.

Additionally, Yuen JA upheld Hartmann J’s ruling that the Director had not de facto incorporated non-refoulement through the exercise of his discretion in making decisions based on humanitarian grounds, adding that this would be ‘incorporation… through the back door’. Her Ladyship also agreed that, if the government were indeed obliged to observe non-refoulement, refugee status determination did not necessarily have to be performed by the government.

However, in obiter dicta, Yuen JA disagreed with Hartmann J that the Hong Kong government had persistently objected to international law on non-refoulement. It was common ground that Hong Kong ‘in its own right’ did not have the capacity to ‘contract out’ of provisions of international law, but counsel for the first respondent (the Director of Immigration) submitted that the ‘non-extension’ of the Refugee Convention to Hong Kong by the UK and China, the reservations made for Hong Kong to the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights, and the ‘implied authorisation’ by China of Hong Kong government officials’ statements amounted to ‘persistent objection’. Her Ladyship rejected this argument, mainly because counsel had not addressed the non-refoulement obligation in customary international law as distinct from that in the Refugee Convention.