Asylum seekers fight ruling on repatriation

PUBLISHED : Tuesday, 13 October, 2009, 12:00am
UPDATED : Tuesday, 13 October, 2009, 12:00am

Six asylum seekers yesterday launched an appeal to overturn a ruling that the government was under no obligation to screen refugee claims.

The appeal stemmed from a decision by Mr Justice Michael Hartmann in the Court of First Instance last year striking down an application for a judicial review from the six claimants.

The case, which is expected to affect more than 2,000 claimants seeking refugee status in Hong Kong, was brought against the government by the six over its alleged failure to follow a universally accepted practice under international law which prohibits 'non-refoulement'.

This is a principle in international law that concerns the protection of refugees from being returned to places where their lives or freedoms could be threatened.

But Hartmann found that non-refoulement had not attained the status of a peremptory norm that required absolute compliance from all international communities, and this rule had not been incorporated into the domestic laws of Hong Kong.

He found therefore the government was not obliged to screen all people who said they were at risk if they were repatriated.

Acting for the six, Philip Dykes SC contended in the Appeal Court before Madam Justice Maria Yuen Ka-ning, Mr Justice Andrew Cheung Kui-nung and Mr Justice Johnson Lam Man-hon that the concept of non-refoulement had matured to become a peremptory norm.

Acknowledging the fact that the Refugee Convention had never been extended to Hong Kong, Dykes argued that the government was still bound by it.

The barrister said that the court could conclude that such a norm acquired its status by looking overseas.

Under current practice, refugee claims are examined by the Hong Kong sub-office of the United Nations High Commissioner for Refugees (UNHCR).

If the UNHCR recognises a person as a refugee, the director of immigration would afford them temporary refuge until the UN body was able to settle them elsewhere in the world.

The Immigration Ordinance gives the director discretion to allow such people to stay in Hong Kong on 'exceptional humanitarian or compassionate grounds'.

The appellants contended that the government should introduce a mechanism to examine refugee claims, and the director's discretionary power should be exercised under an administration screening system. The hearing continues today.