HK should abide by convention on refugees' claims, court told

PUBLISHED : Saturday, 15 December, 2007, 12:00am
UPDATED : Saturday, 15 December, 2007, 12:00am

Hong Kong could not shirk its responsibility to fairly assess people's refugee claims just because other Asian countries chose not to abide by a UN convention on the matter, the Court of First Instance has heard.

Philip Dykes SC, representing six people seeking refugee status, said the government's refusal to set up its own mechanism for assessing refugee claims was a breach of the city's obligations under the principle of non-refoulement - not returning someone to a place where their safety would be imperiled.

The principle had gained the status of customary international law, Mr Dykes said, and as such had been incorporated into Hong Kong's laws.

He was responding to claims by Anderson Chow SC, for the government, that the fact many other Asian countries were not signatories to the UN's refugee convention was proof the principle had not gained the status Mr Dykes wished to attach to it.

That said, Mr Chow told the court, there had not been a single case of Hong Kong returning someone to a place where they faced persecution or danger - but that did not mean the government felt itself bound by the principle of non-refoulement.

The city would allow people to stay on humanitarian grounds in the exceptional circumstance that their refugee claim was verified by the UN High Commissioner for Refugees.

Mr Dykes noted that Hong Kong was part of mainland China, which had signed up to the rights convention, and before that of Britain, which was also a signatory. He also poured water on the suggestion that because refugees were being returned to places of danger all the time, the principle of non-refoulement was not generally accepted.

The six applicants had been chosen as a representative case for a larger pool of people claiming refugee status, said human rights lawyer Mark Daly.

They are seeking a declaration to the effect that Hong Kong is bound by the principle of non-refoulement and as a result has an implied duty to set up a fair and appealable method of assessing claims. The current system, whereby claims are assessed by the local office of the UNHCR, is not appealable to a court.

Mr Justice Michael Hartmann adjourned his decision to a later date.