Hong Kong Case Law: Decisions & Judgments

Topic

Delegation to unhcr

Legal area

Court

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

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.
18 Feb 2008

AK v. DIRECTOR OF IMMIGRATION

Citation

AK v. DIRECTOR OF IMMIGRATION
Court

Court of First Instance
Case number

HCAL1/2007

The court held that non-refoulement as applied to refugees is a rule of customary international law but has not attained jus cogens status; Hong Kong has by consistent policy and conduct repudiated that rule and it has not been incorporated into Hong Kong domestic law; accordingly the Director is not legally obliged to conduct a domestic screening of all refugee claimants and may rely on UNHCR determinations so long as he has not fettered his statutory discretion; the applicants' declaratory reliefs are refused.
18 Feb 2008

YAM v. DIRECTOR OF IMMIGRATION

Citation

YAM v. DIRECTOR OF IMMIGRATION
Court

Court of First Instance
Case number

HCAL82/2007

The court held that the principle of non-refoulement as applied to refugees has become a rule of customary international law but not a peremptory (jus cogens) norm; Hong Kong's consistent policy and legislative context demonstrate repudiation of that customary rule so it has not been incorporated into domestic law; accordingly the Director is under no domestic legal obligation to conduct screening of all refugee claimants but may rely on UNHCR determinations provided he does not fetter his statutory discretion and maintains ultimate responsibility.
18 Feb 2008

VK v. DIRECTOR OF IMMIGRATION

Citation

VK v. DIRECTOR OF IMMIGRATION
Court

Court of First Instance
Case number

HCAL44/2007

The court held that non-refoulement in respect of refugees is a rule of customary international law but not a peremptory (jus cogens) norm; Hong Kong has by consistent public policy and legislative posture repudiated incorporation of that rule into domestic law, so it is not part of Hong Kong law; consequently the Director is not legally obliged to conduct national screening of all refugee claims and may rely on UNHCR determinations so long as he does not fetter his statutory discretion; the applicants' declaratory relief was refused.
18 Feb 2008

C v. DIRECTOR OF IMMIGRATION

Citation

C v. DIRECTOR OF IMMIGRATION
Court

Court of First Instance
Case number

HCAL132/2006

Court held that the principle of non-refoulement as applied to refugees has become a rule of customary international law but has not attained jus cogens status; Hong Kong by consistent legislative and executive conduct has repudiated incorporation of that customary rule into domestic law, therefore it is not part of Hong Kong domestic law; accordingly the Director is not legally obliged to conduct domestic screening of all refugee claimants and may lawfully rely on UNHCR determinations provided he does not fetter his statutory discretion.
18 Feb 2008

BF v. DIRECTOR OF IMMIGRATION AND ANOTHER

Citation

BF v. DIRECTOR OF IMMIGRATION AND ANOTHER
Court

Court of First Instance
Case number

HCAL48/2007

Court held that a universal rule of customary international law prohibiting refoulement of refugees exists but has not achieved jus cogens status; Hong Kong has consistently repudiated and declined to incorporate that rule into its domestic law and therefore the rule is not part of Hong Kong domestic law; accordingly the Director of Immigration is not legally obliged to conduct domestic screening of all refugee claimants and may rely on UNHCR determinations provided he does not fetter his statutory discretion; declaratory relief sought by applicants was refused.