Hong Kong Case Law: Decisions & Judgments

Topic

Customary international law

Legal area

Court

25 Mar 2013

C AND OTHERS v. DIRECTOR OF IMMIGRATION AND ANOTHER

Citation

C AND OTHERS v. DIRECTOR OF IMMIGRATION AND ANOTHER
Court

Court of Final Appeal
Case number

FACV20/2011

The Court allowed the appeals on the ground that the Director's power to remove is subject to judicial review and, where a person claims refugee status or faces risk of persecution on return, the Director must make an independent determination whether the claimant's fear is well-founded and that any such determination must meet high standards of fairness; mere automatic reliance on UNHCR determinations without adequate independent consideration is insufficient.
14 Dec 2011

C AND OTHERS v. DIRECTOR OF IMMIGRATION AND ANOTHER

Citation

C AND OTHERS v. DIRECTOR OF IMMIGRATION AND ANOTHER
Court

Court of Appeal
Case number

CACV132/2008

Leave to appeal to the Court of Final Appeal was granted because the appeal raised questions of great general or public importance under s.22(1)(b) HKCFAO: whether non-refoulement is jus cogens, whether it has been excluded by HKSAR domestic law, and whether it imposes a non-delegable duty of independent inquiry on the HKSAR Government.
14 Dec 2011

BF v. DIRECTOR OF IMMIGRATION AND ANOTHER

Citation

BF v. DIRECTOR OF IMMIGRATION AND ANOTHER
Court

Court of Appeal
Case number

CACV136/2008

Leave to appeal to the Court of Final Appeal was granted under s.22(1)(b) Cap.484 because the appeal raises issues of great general or public importance: (1) whether non-refoulement is a peremptory norm (jus cogens), (2) whether domestic legislation has validly excluded the norm in the HKSAR, and (3) whether there is a non-delegable duty of independent inquiry by the HKSAR Government into refugee status.
14 Dec 2011

KMF v. DIRECTOR OF IMMIGRATION AND ANOTHER

Citation

KMF v. DIRECTOR OF IMMIGRATION AND ANOTHER
Court

Court of Appeal
Case number

CACV134/2008

Leave to appeal was granted because the appeal raises issues of great general or public importance under s.22(1)(b) HKCFAO: whether non-refoulement is jus cogens, whether it has been validly excluded by HKSAR domestic legislation, and whether it imposes a non-delegable duty of independent inquiry on the HKSAR Government.
21 Jul 2011

AK v. DIRECTOR OF IMMIGRATION AND ANOTHER

Citation

AK v. DIRECTOR OF IMMIGRATION AND ANOTHER
Court

Court of Appeal
Case number

CACV133/2008

The Court held that the concept of non-refoulement of refugees has developed into customary international law but has not attained jus cogens; however Hong Kong is not bound in domestic law because the Immigration Ordinance (Cap.115) demonstrates clear legislative intent to confer an unfettered discretion on the Director which overrides that customary rule; accordingly there is no common law duty requiring the Director personally to conduct refugee status determinations and reliance on the UNHCR for RSD is not unlawful; appeal dismissed.
21 Jul 2011

VK v. DIRECTOR OF IMMIGRATION AND ANOTHER

Citation

VK v. DIRECTOR OF IMMIGRATION AND ANOTHER
Court

Court of Appeal
Case number

CACV135/2008

The Court held that although the concept of non-refoulement of refugees has developed into customary international law, it has not attained jus cogens status and, in any event, the Immigration Ordinance evinces a clear legislative intent giving the Director an unfettered discretion which overrides that customary rule in Hong Kong; Hong Kong was not treated as a valid persistent objector on the basis required but domestic statute governs; the Director's humanitarian practice and reliance on UNHCR for refugee status determination does not create a legal duty to conduct in-house RSD; appeal dism…
21 Jul 2011

BF v. DIRECTOR OF IMMIGRATION AND ANOTHER

Citation

BF v. DIRECTOR OF IMMIGRATION AND ANOTHER
Court

Court of Appeal
Case number

CACV136/2008

Court held that the concept of non-refoulement of refugees has developed into customary international law but has not attained jus cogens; Hong Kong was not found to be a persistent objector but domestic legislation (Immigration Ordinance Cap.115 and legislative history) manifests a clear intent leaving the Director an unfettered discretion to remove persons, thereby overriding any customary international obligation in domestic law; consequently the Director is not legally obliged to undertake refugee status determination personally and reliance on UNHCR procedures is lawful; appeal dismissed.
21 Jul 2011

KMF v. DIRECTOR OF IMMIGRATION AND ANOTHER

Citation

KMF v. DIRECTOR OF IMMIGRATION AND ANOTHER
Court

Court of Appeal
Case number

CACV134/2008

The Court held that while the concept of non-refoulement of refugees has developed into customary international law, it has not attained jus cogens status and, in any event, clear domestic legislation (the Immigration Ordinance Cap.115) manifests legislative intent to leave removal discretion with the Director and therefore overrides the customary rule in Hong Kong; consequently there is no domestic legal duty requiring the Director personally to undertake RSD or to abandon the established practice of referring claims to UNHCR, and the appeals were dismissed.
21 Jul 2011

YAM v. DIRECTOR OF IMMIGRATION AND ANOTHER

Citation

YAM v. DIRECTOR OF IMMIGRATION AND ANOTHER
Court

Court of Appeal
Case number

CACV137/2008

Court held that non-refoulement of refugees has developed into customary international law but not into a peremptory norm; domestic law (Immigration Ordinance Cap.115 and legislative scheme including treatment of Vietnamese refugees) demonstrates clear legislative intent to leave the Director's discretion unfettered and therefore overrides any incorporated customary rule; reliance on UNHCR for RSD is not unlawful; appeal dismissed.
21 Jul 2011

C v. DIRECTOR OF IMMIGRATION AND ANOTHER

Citation

C v. DIRECTOR OF IMMIGRATION AND ANOTHER
Court

Court of Appeal
Case number

CACV132/2008

The Court held that the concept of non-refoulement of refugees has developed into customary international law but not into a peremptory norm; Hong Kong domestic law (the Immigration Ordinance Cap.115 and legislative intent evidenced in prior statute/regime) overrides that customary international law in local law; Hong Kong was not held to be a definitive persistent objector in any event; delegation to UNHCR for refugee status determination is not unlawful; accordingly the appellants' judicial review claims fail and the appeal is dismissed.