Human Rights, Non-Refoulement and the Protection of Refugees in Hong Kong

Abstract

Although the 1951 Convention relating to the Status of Refugees and its 1967 Protocol do not apply to Hong Kong, asylum seekers have challenged Hong Kong’s lack of an adequate refugee policy in a series of judicial review actions grounded in human rights and common law principles. This article focuses on two cases in particular in which the applicants have attempted to rely, in part, on a right to non-refoulement, derived from international and domestic law, to compel the Government to establish procedures to determine the status of refugees and other similar categories of claimants. The first, Secretary for Security v. Sakthevel Prabakar, led to the creation of a ‘torture screening’ mechanism based on article 3 of the Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment. In the second, C v. Director of Immigration, the court considered whether a rule of non-refoulement has emerged in customary international law and, if so, whether it applies to Hong Kong and requires government-administered refugee status determination. Although the applicants failed at the first instance, an analysis of the judgment with reference to Hong Kong’s human rights obligations reveals gaps in the court’s reasoning and demonstrates the potential for greater reliance on these standards as the basis for developing a more comprehensive protection framework. This examination of the Hong Kong experience may have broader comparative value, especially in the Asian region and in jurisdictions not bound by the Refugee Convention or its Protocol.