Refugee Non-Refoulement in Customary International Law: An Asian Perspective

Human Rights in Ireland welcomes guest contributor, Sonya Donnelly. Sonya is currently working as a Staff Attorney with the Hong Kong Refugee Advice Centre Limited (HKRAC.) HKRAC is the only NGO that provides pro-bono legal aid for asylum seekers undergoing the UNHCR refugee status determination process in Hong Kong.  Sonya has written extensively on human rights issues and co-wrote a legal text for first year barristers, The Devil’s Handbook.

The week sees an important case on international refugee law argued before the Hong Kong Court of Final Appeal. Central to the case is whether non-refoulement of refugees has attained the status of jus cogens. C, KMF and BF v Director of Immigration and Secretary for Security (FACV Nos. 18/19/20 2011) (the C case) opened in the Court of Final Appeal on Tuesday and is due to run until today with the UNHCR acting as an intervener in the case.

Article 33(1) of the Refugee Convention contains a prohibition against refoulement, which is a prohibition against returning a refugee to the frontiers of territories where his life or freedom would be threatened.  The article states that:

No contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

The four main issues before the court in the Court of Final Appeal are:

  1. Is there a norm of customary international law (CIL) requiring non-refoulement of refugees?
  2. If this is so, is it a part of the domestic law of Hong Kong?
  3. If it is not part of the domestic law of Hong Kong, has the Director of Immigration (the Director) as a matter of practice exercised his discretion such that it has de facto recognised that concept?
  4. If it is part of the law of Hong Kong, is the Director obliged to determine the claims for refugee status, or are they delegable to the UNHCR?

As a brief background note, Hong Kong is a Special Administrative Region of China (HKSAR). China resumed sovereignty over Hong Kong in 1997 after almost 150 years of British colonial rule. While China now has responsibility for foreign relations and defence, Hong Kong operates under a different political system from the mainland, has an independent judiciary and a common law framework. The Court of Final Appeal, which is made up of five judges, is the highest appellate court in the HKSAR.  The judicial bench for the C case is made up of three permanent judges, one non-permanent judge and, as is usual in the Court of Final Appeal, one judge from another common law jurisdiction. Sir Anthony Mason, a former Chief of the High Court of Australia, is the second non-permanent judge sitting on the bench for the C case.

Davies in her article “The Asian Rejection?: International Refugee Law in Asia”, Australian Journal of Politics and History: Volume 52, Number 4, 2006, pp. 562-575 states that

The majority of Asian states have not signed onto the major international refugee law instruments which promote refugee recognition and protection. Yet, second to Africa, the Asian region has had the highest number of refugees since the Second World War.

While China has now ratified the 1951 Refugee Convention and its 1967 Protocol this has not been extended to Hong Kong and there are no national laws that provide protection specifically for refugees. As to why Hong Kong has never had the Refugee Convention extended to it, in a paper presented to the Legislative Council Panels on Security and Welfare Services in July 2006, the government set out the following explanation:

Hong Kong is small in size and has a dense population.  Our unique situation, set against the backdrop of our relative economic prosperity in the region and our liberal visa regime, makes us vulnerable to possible abuses if the [Refugee Convention] were to be extended to Hong Kong.  We thus have a firm policy of not granting asylum and do not have any obligation to admit individuals seeking refugee status under the [Refugee Convention.]

Refugee claimants, however, are not simply expelled to their country of nationality or the country from where they have come. A Memorandum of Understanding between the authorities and UNHCR has allowed UNHCR to complete refugee status determination (RSD) of asylum-seekers in Hong Kong, independently of the Hong Kong Government. 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 practice of the Director not to repatriate that person but to afford them temporary refuge until the UNHCR is able to settle that person elsewhere in the world.  It has been accepted throughout these proceedings that the Director had in fact never returned a recognised refugee to a country where there was a real risk they would be persecuted. As such it is contended by the Appellant that this inevitable practice on the part of the Director constitutes a de facto recognition of the principle of non-refoulement as it has matured into a rule of customary international law.  The Director, however, does not acknowledge any formal legal obligation under any rule of international law and states that he is merely exercising his discretion under the Immigration Ordinance, Cap. 115. The lower courts in the C case have held that while non-refoulement is a principle of CIL they have stated that it has not been incorporated into domestic law in part because the Immigration Ordinance grants the Director “unfettered discretion”.

An Asian Rejection? The C Case

The six applicants in the case arrived in Hong Kong from Africa and South Asia. All applicants claimed to be refugees on the basis that each had a well-founded fear of persecution as set out in the Refugee Convention. Their refugee claims were rejected by UNHCR at first instance and their appeals have also been dismissed under UNHCR’s appeal procedure. The applicants then sought judicial review of the Director’s decision to have them removed from Hong Kong after this rejection. They have sought a number of declarations in their application for judicial review, with the questions now before the Court of Final Appeal framed slightly differently than the questions before the Court of First Instance.

In the Court of First Instance the Applicants sought a declaration firstly in respect of the definition of a refugee under CIL and the minimum protection against non-refoulement; secondly, on the status of the principle of non-refoulement as a peremptory norm or jus cogens under customary international law, forming part of the common law of the HKSAR; thirdly, on the duty of the Director of Immigration to carry out an independent inquiry into the status of refugee claimants entitled not to be refouled in accordance with the highest standards of fairness, before deciding whether they should be removed to a place where they feared persecution; and fourthly, in the alternative to the third declaration, they sought a declaration on the non-delegable duty of the Director to carry out an independent inquiry in accordance with the highest standards of fairness into the existence of humanitarian grounds advanced against removal, before deciding whether the persons advancing such grounds should be removed to a place where they feared persecution.

In 2008, Hartman J. in the Court of First Instance dismissed the application for judicial review. Kelley Loper, a member of the board of directors of HKRAC and Deputy Director of the Centre for Comparative and Public Law (CCPL) at The University of Hong Kong has further detail on the first instance decision and also sets out refugee developments in general in an article entitled Human Rights, Non-Refoulement and the Protection of Refugees in Hong Kong”.

In 2011 the Court of Appeal also dismissed the appeal. In dismissing the appeals the Court of Appeal found the following:

(1) The concept of non-refoulement of refugees had developed into a rule of CIL but had not attained the status of a peremptory norm.

(2) The HKSAR Government did not have the capacity in its own right to raise objections as a persistent objector to dissociate itself from the development of a rule of CIL.

(3) The Immigration Ordinance showed a ‘clear legislative intent’ to give the Director of Immigration unfettered discretionary powers, thereby overriding the operation of the rule of CIL of non-refoulement of refugees.

(4) Where the Director of Immigration decided not to remove a UNHCR recognised refugee that decision had not created a de facto recognition of any legal obligation as it had been done on individual humanitarian grounds.

(5) There is not obligation on the Director to undertake refugee status determination.

Arguments in the Court of Final Appeal

Michael Fordham QC, counsel for the Appellants, has argued again that the Director has as a matter of practice exercised his discretion such that Hong Kong had de facto recognised the concept of non-refoulement of refugees. In his arguments he made extensive reference to the case of R (European Roma Rights Centre & Ors) v Immigration Officer at Prague Airport & Anor (United Nations High Commissioner for Refugees intervening) [2005] 2 AC 1 in addition to the Hong Kong case of Lee Bun & Anor v Director of Immigration [1990] 2 HKLR 466; [1990] HKCU 414 (which was decided before the Hong Kong Bill of Rights was enacted in June 1991). Counsel also utilized the New Zealand case of Zaoui v Attorney General (No 2) [2005] 1 NZLR 690 and Her Majesty’s Treasurer v Mohammed Jabar Ahmed & Ors [2010] UKSC 2 in his arguments.  Lauterpacht and Bethlehem’s The Scope and Content of the Principle of Non-refoulement was cited also. At paragraph 253 this document states that:

No person shall be rejected, returned, or expelled in any manner whatever where this would compel him or her to remain in or return to a territory where substantial grounds can be shown for believing that he or she would face a real risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment.

Of particular note is that the Appellants have complained that the screening process conducted by the UNHCR is inadequate. Many lawyer’s working in the UNHCR RSD system will have experienced some difficulties in a number of areas in this process. This includes problematic interviews, sub-standard interpretation, insufficient (if any) access to evidence or reasoning for decisions in some jurisdictions, the lack of an independent appeal, and the lack of the ability of lawyers or caseworkers in some jurisdictions, to attend interviews, and in others, to intervene, except on very limited grounds. For further information on difficulties in the UNHCR RSD process see Kagan, The Beleaguered Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status Determination, IJRL Vol. 18 and Alexander, Refugee Status Determination Conducted by UNHCR, IJRL Vol. 11 No. 2.  The most serious argument put forward in this respect by the Appellants is that the UNHCR determinations are immune from judicial scrutiny which was accented on Wednesday by counsel for UNHCR.

On Wednesday UNHCR, acting as an intervener in the case despite HKSAR government objections, stated that the principle of non-refoulement is “beyond doubt” CIL. Gerard McCoy SC stated that it is at a minimum a principle of CIL and that the idea that the Asian region or Hong Kong could opt out of this fundamental cornerstone was inconceivable.  He further stated that UNHCR would reserve the right to argue that the principle was peremptory.

In terms of support from the legal community, the Hong Kong Law Society and Bar Association have called on the HKSAR Administration to put in place a comprehensive legislative framework to ensure high standards of fairness for screening claimants under the Convention Against Torture and for determination of the refugee status of asylum seekers since they published a joint position paper on the ‘Framework for Convention Against Torture Claimants and Asylum Seekers’ in 2009. This position was recently cemented in statements by the Bar Association and the Law Society in the aftermath of Ubamaka Edward Wilson v. The Secretary for Security published in February 2013. However it remains to be seen whether the courts will accept the Appellants’ arguments in the case. The hearing continues today before Mr Justices Chan, Ribeiro, Tang, Bokhary and Mason where the Respondents will finish their arguments and the Appellants will respond.

For further updates on this case, and all matters in respect of refugees in Hong Kong, you can follow HKRAC on twitter @HKRAC.





Refugee Non-Refoulement in Customary International Law: An Asian Perspective

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