Hong Kong's policies relating to asylum-seekers : torture and the principle of non-refoulement

James A. RICE

Research output: Journal PublicationsJournal Article (refereed)

Abstract

In the years following the transfer of sovereignty from British to Chinese rule, the Hong Kong Special Administrative Region has consistently tried to maintain a reputation as a jurisdiction that enjoys an independent judiciary and the rule of law. However, over the past decade, a series of events in particular areas have challenged this perception. The status of refugees and how they are treated represents one such area. The status of asylum seekers has always been a matter of concern as Hong Kong has never been a signatory to the 1951 United Nations Convention Relating to the Status of Refugees. Additionally, recent court decisions regarding the question of non-refoulement and the absence of a government screening process for refugees make it increasingly difficult for observers to accept Hong Kong as a forward-looking, world-class city.

This article examines recent decisions that deal with Hong Kong's obligations under international law regarding avoiding the ejection of refugees to jurisdictions where they will likely face persecution or torture. In particular, this article focuses on C. and Others v. Director of Immigration, in which Hong Kong's Court of First Instance considered whether an obligation of non-refoulement exists, and whether Hong Kong's government has a duty to provide a screening process to determine the status of all refugee claimants. Also explored is an earlier decision by Hong Kong's Court of Final Appeal, Secretary for Security v. Prabakar, in which a screening procedure for torture claimants was established. In light of these decisions, this article outlines the current procedures used to determine refugee status and highlights the difficulties faced by refugees while awaiting resettlement in a third country. This article argues that the administration does in fact have a legal obligation under both international and Hong Kong law to provide asylum seekers a fair and transparent means of refugee status determination.
Original languageEnglish
Pages (from-to)148-173
Number of pages26
JournalPacific Basin Law Journal
Volume28
Issue number2
Publication statusPublished - 2011

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